EN BANC

TONDO MEDICAL CENTER EMPLOYEES ASSOCIATION, RESEARCH INSTITUTE FOR TROPICAL MEDICINE EMPLOYEES ASSOCIATION, NATIONAL ORTHOPEDIC WORKERS UNION, DR. JOSE R. REYES MEMORIAL HOSPITAL EMPLOYEES UNION, SAN LAZARO HOSPITAL EMPLOYEES ASSOCIATION, ALLIANCE OF HEALTH WORKERS, INC., HEALTH ALLIANCE FOR DEMOCRACY, COUNCIL FOR HEALTH DEVELOPMENT, NETWORK OPPOSED TO PRIVATIZATION, COMMUNITY MEDICINE DEVELOPMENT FOUNDATION INC., PHILIPPINE SOCIETY OF SANITARY ENGINEERS INC., KILUSANG MAYO UNO, GABRIELA, KILUSANG MAGBUBUKID NG PILIPINAS, KALIPUNAN NG DAMAYAN NG MGA MARALITA, ELSA O. GUEVARRA, ARCADIO B. GONZALES, JOSE G. GALANG, DOMINGO P. MANAY, TITO P. ESTEVES, EDUARDO P. GALOPE, REMEDIOS M. YSMAEL, ALFREDO BACUATA, EDGARDO J. DAMICOG, REMEDIOS M. MALTU AND REMEGIO S. MERCADO, Petitioners, - versus THE COURT OF APPEALS, EXECUTIVE SECRETARY ALBERTO G. ROMULO, SECRETARY OF HEALTH MANUEL M. DAYRIT, SECRETARY OF BUDGET AND MANAGEMENT EMILIA T.

G.R. No. 167324 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR., and NACHURA, JJ.

BONCODIN, Respondents. Promulgated: July 17, 2007 x--------------------------------------------------x DECISION CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision,[1] promulgated by the Court of Appeals on 26 November 2004, denying a petition for the nullification of the Health Sector Reform Agenda (HSRA) Philippines 1999-2004 of the Department of Health (DOH); and Executive Order No. 102, Redirecting the Functions and Operations of the Department of Health, which was issued by then President Joseph Ejercito Estrada on 24 May 1999. Prior hereto, petitioners originally filed a Petition for Certiorari,

Prohibition and Mandamus under Rule 65 of the 1997 Revised Rules of Civil Procedure before the Supreme Court on 15 August 2001. However, the Supreme Court, in a Resolution dated 29 August 2001, referred the petition to the Court of Appeals for appropriate action. HEALTH SECTOR REFORM AGENDA (HSRA) In 1999, the DOH launched the HSRA, a reform agenda developed by the HSRA Technical Working Group after a series of workshops and analyses with inputs from several consultants, program managers and technical staff possessing the adequate expertise and experience in the health sector. It provided for five general areas of reform: (1) to provide fiscal autonomy to government hospitals; (2) secure funding for priority public health programs;

(3) promote the development of local health systems and ensure its effective performance; (4) strengthen the capacities of health regulatory agencies; and (5) expand the coverage of the National Health Insurance Program (NHIP).[2] Petitioners questioned the first reform agenda involving the fiscal autonomy of government hospitals, particularly the collection of socialized user fees and the corporate restructuring of government hospitals. The said provision under the HSRA reads: Provide fiscal autonomy to government hospitals. Government hospitals must be allowed to collect socialized user fees so they can reduce the dependence on direct subsidies from the government. Their critical capacities like diagnostic equipment, laboratory facilities and medical staff capability must be upgraded to effectively exercise fiscal autonomy. Such investment must be cognizant of complimentary capacity provided by public-private networks. Moreover such capacities will allow government hospitals to supplement priority public health programs. Appropriate institutional arrangement must be introduced such as allowing them autonomy towards converting them into government corporations without compromising their social responsibilities. As a result, government hospitals are expected to be more competitive and responsive to health needs. Petitioners also assailed the issuance of a draft administrative order issued by the DOH, dated 5 January 2001, entitled Guidelines and Procedure in the Implementation of the Corporate Restructuring of Selected DOH Hospitals to Achieve Fiscal Autonomy, and Managerial Flexibility to Start by January 2001;[3] and Administrative Order No. 172 of the DOH, entitled Policies and Guidelines on the Private Practice of Medical and Paramedical Professionals in Government Health Facilities,[4] dated 9 January 2001, for imposing an added burden to indigent Filipinos, who cannot afford to pay for medicine and medical services.[5] Petitioners alleged that the implementation of the aforementioned reforms had resulted in making free medicine and free medical services inaccessible to economically disadvantaged Filipinos. Thus, they alleged that

the HSRA is void for being in violation of the following constitutional provisions:[6] ART. III, SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law. ART II, SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment of all the people of the blessings of democracy. ART II, SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. ART II, SEC. 10. The State shall promote social justice in all phases of national development. ART II, SEC. 11. The State values the dignity of every human person and guarantees full respect for human rights. ART II, SEC. 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being x x x. ART II, SEC. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. ART XV, SEC. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. ART XV, SEC. 3. The State shall defend: xxxx (2) the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development.

xxxx ART XIII, SEC. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. ART II, SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. ART XIII, SEC. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

EXECUTIVE ORDER NO. 102 On 24 May 1999, then President Joseph Ejercito Estrada issued

Executive Order No. 102, entitled Redirecting the Functions and Operations of the Department of Health, which provided for the changes in the roles, functions, and organizational processes of the DOH. Under the assailed executive order, the DOH refocused its mandate from being the sole provider of health services to being a provider of specific health services and technical assistance, as a result of the devolution of basic services to local government units. The provisions for the streamlining of the DOH and the deployment of DOH personnel to regional offices and hospitals read: Sec. 4. Preparation of a Rationalization and Streamlining Plan. In view of the functional and operational redirection in the DOH, and to effect efficiency and effectiveness in its activities, the Department shall prepare a Rationalization and Streamlining Plan (RSP) which shall be the basis of the intended changes. The RSP shall contain the following:

a) b) c) d)

the specific shift in policy directions, functions, programs and activities/strategies; the structural and organizational shift, stating the specific functions and activities by organizational unit and the relationship of each units; the staffing shift, highlighting and itemizing the existing filled and unfilled positions; and the resource allocation shift, specifying the effects of the streamline set-up on the agency budgetary allocation and indicating where possible, savings have been generated.

The RSP shall [be] submitted to the Department of Budget and Management for approval before the corresponding shifts shall be affected (sic) by the DOH Secretary. Sec. 5. Redeployment of Personnel. The redeployment of officials and other personnel on the basis of the approved RSP shall not result in diminution in rank and compensation of existing personnel. It shall take into account all pertinent Civil Service laws and rules. Section 6. Funding. The financial resources needed to implement the Rationalization and Streamlining Plan shall be taken from funds available in the DOH, provided that the total requirements for the implementation of the revised staffing pattern shall not exceed available funds for Personnel Services. Section 7. Separation Benefits. Personnel who opt to be separated from the service as a consequence of the implementation of this Executive Order shall be entitled to the benefits under existing laws. In the case of those who are not covered by existing laws, they shall be entitled to separation benefits equivalent to one month basic salary for every year of service or proportionate share thereof in addition to the terminal fee benefits to which he/she is entitled under existing laws.

Executive Order No. 102 was enacted pursuant to Section 17 of the Local Government Code (Republic Act No. 7160), which provided for the devolution to the local government units of basic services and facilities, as well as specific health-related functions and responsibilities.[7]

Petitioners contended that a law, such as Executive Order No. 102, which effects the reorganization of the DOH, should be enacted by Congress in the exercise of its legislative function. They argued that Executive Order No. 102 is void, having been issued in excess of the Presidents authority.[8] Moreover, petitioners averred that the implementation of the

Rationalization and Streamlining Plan (RSP) was not in accordance with law. The RSP was allegedly implemented even before the Department of Budget and Management (DBM) approved it. They also maintained that the Office of the President should have issued an administrative order to carry out the streamlining, but that it failed to do so.[9] Furthermore, petitioners Elsa O. Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo P. Galope,Remedios M. Ysmael, Alfredo U. Bacuata and Edgardo J. Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas.[10] Petitioners also pointed out several errors in the implementation of the RSP. Certain employees allegedly suffered diminution of compensation,[11] while others were supposedly assigned to positions for which they were neither qualified nor suited.[12] In addition, new employees were purportedly hired by the DOH and appointed to positions for which they were not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs.[13] It was also averred that DOH employees were deployed or transferred even during the three-month period before the national and local elections in May 2001,[14] in violation of Section 2 of the Republic Act No. 7305, also known as Magna Carta for Public Health Workers.[15] Petitioners, however, failed to identify the DOH employees referred to above, much less include them as parties to the petition.

The Court of Appeals denied the petition due to a number of procedural defects, which proved fatal: 1) Petitioners failed to show capacity or authority to sign the certification of non-forum shopping and the verification; 2) Petitioners failed to show any particularized interest for bringing the suit, nor any direct or personal injury sustained or were in the immediate danger of sustaining; 3) the Petition, brought before the Supreme Court on 15 August 1999, was filed out of time, or beyond 60 days from the time the reorganization methods were implemented in 2000; and 4) certiorari, Prohibition and Mandamus will not lie where the President, in issuing the assailed Executive Order, was not acting as a tribunal, board or officer exercising judicial or quasi-judicial functions. In resolving the substantial issues of the case, the Court of Appeals ruled that the HSRA cannot be declared void for violating Sections 5, 9, 10, 11, 13, 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty of the State to protect and promote the peoples right to health and well-being. It reasoned that the aforementioned provisions of the Constitution are not self-executing; they are not judicially enforceable legislation. Moreover, the Court of Appeals held that the petitioners assertion that Executive Order No. 102 is detrimental to the health of the people cannot be made a justiciable issue. The question of whether the HSRA will bring about the development or disintegration of the health sector is within the realm of the political department. Furthermore, the Court of Appeals decreed that the President was empowered to issue Executive Order No. 102, in accordance with Section 17 Article VII of the 1987 Constitution. It also declared that the DOH did not implement Executive Order No. 102 in bad faith or with grave abuse of discretion, as alleged by the petitioners, as the DOH issued Department Circular No. 275-C, Series of 2000, which created the different committees constitutional rights and can only provide guidelines for

tasked with the implementation of the RSP, only after both the DBM andPresidential Committee on Effective Governance (PCEG) approved the RSP on 8 July 2000 and 17 July 2000, respectively. Petitioners filed with the Court of Appeals a Motion for Reconsideration of the Decision rendered on 26 November 2004, but the same was denied in a Resolution dated 7 March 2005. Hence, the present petition, where the following issues are raised: I. THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT ANY QUESTION ON THE WISDOM AND EFFICACY OF THE HEALTH SECTOR REFORM AGENDA IS NOT A JUSTICIABLE CONTROVERSY AND THAT THE CONSTITUTIONAL PROVISIONS PROTECTING THE HEALTH OF THE FILIPINO PEOPLE ARE NOT JUDICIALLY ENFORCEABLE; II. THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT PETITIONERS COMPLAINT THAT EXECUTIVE ORDER NO. 102 IS DETRIMENTAL TO THE FILIPINO IS LIKEWISE NOT A JUSTICIABLE CONTROVERSY AND THAT THE PRESIDENT HAS THE AUTHORITY TO ISSUE SAID ORDER; AND III. THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN UPHOLDING TECHNICALITIES OVER AND ABOVE THE ISSUES OF TRANSCENDENTAL IMPORTANCE RAISED IN THE PETITION BELOW. [16] The Court finds the present petition to be without merit.

Petitioners allege that the HSRA should be declared void, since it runs counter to the aspiration and ideals of the Filipino people as embodied in the

Constitution.[17] They claim that the HSRAs policies of fiscal autonomy, income generation, and revenue enhancement violate Sections 5, 9, 10, 11, 13, 15 and 18 of Article II, Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3 of Article XV of the 1987 Constitution. Such policies allegedly resulted in making inaccessible free medicine and free medical services. This contention is unfounded. As a general rule, the provisions of the Constitution are considered selfexecuting, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress.[18] However, some provisions have already been categorically declared by this Court as non self-executing. In Tanada v. Angara,[19] the Court specifically set apart the sections found under Article II of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented: By its very title, Article II of the Constitution is a declaration of principles and state policies. x x x. These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. 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.

In Basco v. Philippine Amusement and Gaming Corporation,[20] this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentinov. Secretary of Finance,[21] the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights.[22]

Some of the constitutional provisions invoked in the present case were taken from Article II of the Constitution -- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the provisions of which the Court categorically ruled to be non self-executing in the aforecitedcase of Taada v. Angara.[23] Moreover, the records are devoid of any explanation of how the HSRA supposedly violated the equal protection and due process clauses that are embodied in Section 1 of Article III of the Constitution. There were no allegations of discrimination or of the lack of due process in connection with the HSRA. Since they failed to substantiate how these constitutional guarantees were breached, petitioners are unsuccessful in establishing the relevance of this provision to the petition, and consequently, in annulling the HSRA. In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of Article XV, the State accords recognition to the protection of working women and the provision for safe and healthful working conditions; to the adoption of an integrated and comprehensive approach to health; to the Filipino family; and to the right of children to assistance and special protection, including proper care and nutrition. Like the provisions that were declared as non self-executory in the cases of Basco v. Philippine Amusement and Gaming Corporation[24] and Tolentino v. Secretary of Finance,[25] they are mere statements of principles and policies. As such, they are mere directives addressed to the executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but rather, the electorates displeasure may be manifested in their votes. The rationale for this is given by Justice Dante Tinga in his Separate Opinion in the case of Agabon v. National Labor Relations Commission[26]: x x x However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of the ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view

presents the dangerous tendency of being overbroad and exaggerated. x x x Subsequent legislation is still needed to define the parameters of these guaranteed rights. x x x Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.

The HSRA cannot be nullified based solely on petitioners bare allegations that it violates the general principles expressed in the non self-executing provisions they cite herein. There are two reasons for denying a cause of action to an alleged infringement of broad constitutional principles: basic considerations of due process and the limitations of judicial power.[27] Petitioners also claim that Executive Order No. 102 is void on the ground that it was issued by the President in excess of his authority. They maintain that the structural and functional reorganization of the DOH is an exercise of legislative functions, which the President usurped when he issued Executive Order No. 102.[28] This line of argument is without basis. This Court has already ruled in a number of cases that the President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department.[29] This is also sanctioned under the Constitution, as well as other statutes. Section 17, Article VII of the 1987 Constitution, clearly states: [T]he president shall have control of all executive departments, bureaus and offices. Section 31, Book III, Chapter 10 of Executive Order No. 292, also known as the Administrative Code of 1987 reads: SEC. 31. Continuing Authority of the President to Reorganize his Office - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing consolidating or merging units thereof or transferring functions from one unit to another; (2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments or Agencies; and (3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other Departments or agencies.

In Domingo v. Zamora,[30] this Court explained the rationale behind the Presidents continuing authority under the Administrative Code to reorganize the administrative structure of the Office of the President. The law grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office to achieve simplicity, economy and efficiency. To remain effective and efficient, it must be capable of being shaped and reshaped by the President in the manner the Chief Executive deems fit to carry out presidential directives and policies. The Administrative Code provides that the Office of the President consists of the Office of the President Proper and the agencies under it.[31] The agencies under the Office of the President are identified in Section 23, Chapter 8, Title II of the Administrative Code: Sec. 23. The Agencies under the Office of the President. The agencies under the Office of the President refer to those offices placed under the chairmanship of the President, those under the supervision and control of the President, those under the administrative supervision of the Office of the President, those attached to it for policy and program coordination, and those that are not placed by law or order creating them under any specific department. (Emphasis provided.)

Section 2(4) of the Introductory Provisions of the Administrative Code defines the term agency of the government as follows: Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein.

Furthermore, the DOH is among the cabinet-level departments enumerated under Book IV of the Administrative Code, mainly tasked with the functional distribution of the work of the President.[32] Indubitably, the DOH is an agency which is under the supervision and control of the President and, thus, part of the Office of the President. Consequently, Section 31, Book III, Chapter 10 of the Administrative Code, granting the President the continued authority to reorganize the Office of the President, extends to the DOH. The power of the President to reorganize the executive department is likewise recognized in general appropriations laws. As early as 1993, Sections 48 and 62 of Republic Act No. 7645, the General Appropriations Act for Fiscal Year 1993, already contained a provision stating that: Sec. 48. Scaling Down and Phase Out of Activities Within the Executive Branch.The heads of departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public services and which may be scaled down, phased out, or abolished, subject to civil service rules and regulations. x x x. Actual scaling down, phasing out, or abolition of activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President. (Emphasis provided.) Sec. 62. Unauthorized Organizational Changes. Unless otherwise created by law or directed by the President of the Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their respective organizational structures and be funded form appropriations by this Act.

Again, in the year when Executive Order No. 102 was issued, The General Appropriations Act of Fiscal Year 1999 (Republic Act No. 8745) conceded to the President the power to make any changes in any of the key positions and organizational units in the executive department thus: Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act.

Clearly, Executive Order No. 102 is well within the constitutional power of the President to issue. The President did not usurp any legislative prerogative in issuing Executive Order No. 102. It is an exercise of the Presidents constitutional power of control over the executive department, supported by the provisions of the Administrative Code, recognized by other statutes, and consistently affirmed by this Court. Petitioners also pointed out several flaws in the implementation of Executive Order No. 102, particularly the RSP. However, these contentions are without merit and are insufficient to invalidate the executive order. The RSP was allegedly implemented even before the DBM approved it. The facts show otherwise. It was only after the DBM approved the Notice of Organization, Staffing and Compensation Action on 8 July 2000,[33] and after the Presidential Committee on Effective Governance (PCEG) issued on 17 July 2000 Memorandum Circular No. 62,[34] approving the RSP, that then DOH Secretary Alberto G. Romualdez issued on 28 July 2000 Department Circular No. 275-C, Series of 2000,[35] creating the different committees to implement the RSP. Petitioners also maintain that the Office of the President should have issued an administrative order to carry out the streamlining, but that it failed to do so. Such objection cannot be given any weight considering that the acts of the DOH Secretary, as an alter ego of the President, are presumed to be the

acts of the President. The members of the Cabinet are subject at all times to the disposition of the President since they are merely his alter egos.[36] Thus, their acts, performed and promulgated in the regular course of business, are, unless disapproved by the President, presumptively acts of the President.[37] Significantly, the acts of the DOH Secretary were clearly authorized by the President, who, thru the PCEG, issued the aforementioned Memorandum Circular No. 62, sanctioning the implementation of the RSP. Petitioners Elsa Odonzo Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo P. Galope, RemediosM. Ysmael, Alfredo U. Bacuata, and Edgardo Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas. In several cases, this Court regarded reorganizations of government units or departments as valid, for so long as they are pursued in good faiththat is, for the purpose of economy or to make bureaucracy more efficient.[38] On the other hand, if the reorganization is done for the purpose of defeating security of tenure or for ill-motivated political purposes, any abolition of position would be invalid. None of these circumstances are applicable since none of the petitioners were removed from public service, nor did they identify any action taken by the DOH that would unquestionably result in their dismissal. The reorganization that was pursued in the present case was made in good faith. The RSP was clearly designed to improve the efficiency of the department and to implement the provisions of the Local Government Code on the devolution of health services to local governments. While this Court recognizes the inconvenience suffered by public servants in their deployment to distant areas, the executive departments finding of a need to make health services available to these areas and to make delivery of health services more efficient and more compelling is far from being unreasonable or arbitrary, a determination which is well within its authority. In all, this Court finds petitioners contentions to be insufficient to invalidate Executive Order No. 102.

Without identifying the DOH employees concerned, much less including them as parties to the petition, petitioners went on identifying several errors in the implementation of Executive Order No. 102. First, they alleged that unidentified DOH employees suffered from a diminution of compensation by virtue of the provision on Salaries and Benefits found in Department Circular No. 312, Series of 2000, issued on 23 October 2000, which reads: 2. Any employee who was matched to a position with lower salary grade (SG) shall not suffer a reduction in salary except where his/her current salary is higher than the maximum step of the SG of the new position, in which case he/she shall be paid the salary corresponding to the maximum step of the SG of the new position. RATA shall no longer be received, if employee was matched to a Non-Division Chief Position.

Incidentally, the petition shows that none of the petitioners, who are working in the DOH, were entitled to receive RATA at the time the petition was filed. Nor was it alleged that they suffered any diminution of compensation. Secondly, it was claimed that certain unnamed DOH employees were matched with unidentified positions for which they were supposedly neither qualified nor suited. New employees, again unnamed and not included as parties, were hired by the DOH and appointed to unidentified positions for which they were purportedly not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs. Lastly, unspecified DOH employees were deployed or transferred during the three-month period before the national and local elections in May 2001, in violation of Section 2 of the Republic Act No. 7305, also known as Magna Carta for Public Health Workers. Petitioners allegations are too general and unsubstantiated by the records for the Court to pass upon. The persons involved are not identified, details of their appointments and transfers such as position, salary grade, and the date they were appointed - are not given; and the circumstances which attended the alleged violations are not specified.

Even granting that these alleged errors were adequately proven by the petitioners, they would still not invalidate Executive Order No. 102. Any serious legal errors in laying down the compensation of the DOH employees concerned can only invalidate the pertinent provisions of Department Circular No. 312, Series of 2000. Likewise, any questionable appointments or transfers are properly addressed by an appeal process provided under Administrative Order No. 94, series of 2000;[39] and if the appeal is meritorious, such appointment or transfer may be invalidated. The validity of Executive Order No. 102 would, nevertheless, remain unaffected. Settled is the rule that courts are not at liberty to declare statutes invalid, although they may be abused or misabused, and may afford an opportunity for abuse in the manner of application. The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.[40] In a number of cases,[41] the Court upheld the standing of citizens who filed suits, wherein the transcendental importance of the constitutional question justified the granting of relief. In spite of these rulings, the Court, in Domingo v. Carague,[42]dismissed the petition when petitioners therein failed to show any present substantial interest. It demonstrated how even in the cases in which the Court declared that the matter of the case was of transcendental importance, the petitioners must be able to assert substantial interest. Present substantial interest, which will enable a party to question the validity of the law, requires that a party sustained or will sustain direct injury as a result of its enforcement.[43] It is distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest.[44] In the same way, the Court, in Telecommunications & Broadcast Attorneys of the Philippines, Inc. v. Comelec,[45] ruled thata citizen is allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. This case likewise stressed that the rule on constitutional questions which are of

transcendental importance cannot be invoked where a partys substantive claim is without merit. Thus, a partys standing is determined by the substantive merit of his case or a preliminary estimate thereof. After a careful scrutiny of the petitioners substantive claims, this Court finds that the petitioners miserably failed to show any merit to their claims. IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This Court AFFIRMS the assailed Decision of the Court of Appeals, promulgated on 26 November 2004, declaring both the HSRA and Executive Order No. 102 as valid. No costs. SO ORDERED.

MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

RENATO C. CORONA

Associate Justice

Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

CANCIO C. GARCIA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

[1]

[2]

Penned by Associate Justice Celia C. Librea-Leagogo with Associate Justices Andres B. Reyes, Jr. and Lucas P. Bersamin, concurring; rollo, pp. 214-254. Id. at 294-296.

[3]

[4]

[5] [6] [7]

The rationale for this draft administrative order reads: In line with the goal of the Health Sector Reform Agenda (HSRA) of providing equitable quality health services, the hospital reforms were initiated to complement the other HSRA components. The objectives of the Hospital Reform component include among others, the following to promote efficiency in hospital operations and management; to enhance the capabilities through facilities and human resource upgrading; and to attain fiscal autonomy and managerial flexibility while maintain the governments social responsibility for the indigent patients. With this framework, the corporate restructuring of DOH Hospitals into government owned and controlled corporations (GOCC) was identified as the most effective means to attain the above objectives. The rationale for this administrative order reads: The Department of Health encourages the employment of physicians and paramedical personnel who are experts in their field of practice in various government hospitals and other government health facilities. It is envisioned to attract the best and the brightest professionals for medical and paramedical positions, in order to 1) provide adequate quality medical care to patients especially the indigent; 2) teach, train and interact with the other medical and paramedical professionals and; 3) Conduct relevant studies and research thereby enhancing the quality of medical and health care delivery systems. As an incentive and in recognition for their commitment to remain as Members of the hospital staff for a longer period for continuous improvement of the health care delivery service of the facility, private practice is allowed. Rollo, pp. 96-98. Id. at 98-102. SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein. (b) Such basic services and facilities include, but are not limited to, the following: (1) For a Barangay: xxxx (ii) Health and social welfare services which include maintenance of barangay health center and day-care center; xxxx (2) For a municipality:

[8] [9] [10] [11] [12] [13] [14] [15]

[16] [17] [18]

[19] [20] [21] [22]

[23] [24] [25] [26] [27]

xxxx (iii) Subject to the provisions of Title Five, Book I of this Code, health services which include the implementation of programs and projects on primary health care, maternal and child care, and communicable and non-communicable disease control services; access to secondary and tertiary health services; purchase of medicines, medical supplies, and equipment needed to carry out the services herein enumerated; xxxx (3) For a Province: xxxx (iv) Subject to the provisions of Title Five, Book I of this Code, health services which include hospitals and other tertiary health services; xxxx (4) For a City: All the services and facilities of the municipality and province, and in addition thereto, the following: Rollo, pp. 131-151. Id. Id. at 114-122. Id. at 109-110. Id. at 105. Id. at 111. Id. at 125-126. Section 2 of Republic Act No. 7305 reads: SEC. 2. No transfer nor reassignment shall be made three months before any local or national elections. Rollo, p. 78. Id. at 98-102. Manila Prince Hotel v. Government Service Insurance System, G.R. No. 122156, 3 February 1997, 267 SCRA 408, 473; Agabon v. National Labor Relations Commission, G.R. No. 158693, 17 November 2004, 442 SCRA 573, 684. 338 Phil. 546, 580-581 (1997). 274 Phil. 323 (1991). G.R. No. 115455, 25 August 1994, 235 SCRA 630, 685. Kilosbayan v. Morato, 316 Phil. 652, 697-698 (1995); and Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82, 102103 (1997). Supra note 19. 274 Phil. 323 (1991). Supra note 21. Supra note 18 at 686. Tanada, v. Angara, supra note 19 at 581.

Rollo, p. 132. Bagaoisan v. National Tobacco Administration, 455 Phil. 761, 774775 (2003); Domingo v. Zamora, 445 Phil. 7, 12-13 (2003); Secretary of the Department of Transportation and Communications v. Mabalot, 428 Phil. 154, 164-165 (2002); Buklod ng Kawaning EIIB v. Zamora, 413 Phil. 281, 291 (2001); Larin v. Executive Secretary, G.R. No. 112745, 280 SCRA 713, 729-730. [30] Id. [31] Section 21, Chapter 8, Title II of the Administrative Code. [32] Section 1, Chapter 1, Book IV of the Administrative Code reads: SECTION 1. Purpose and Number of Departments. - The Executive Branch shall have Departments as are necessary for the functional distribution of the work of the President and for the performance of their functions. [33] Rollo, pp. 384-388. [34] Id. at 389-390. [35] Id. at 384-398. [36] Secretary of the Department of Transportation and Communications v. Mabalot, supra note 29 at 166-167. [37] Villena v. Secretary of Interior, 67 Phil. 451, 463-465 (1939). [38] Secretary of the Department of Transportation and Communications v. Mabalot, supra note 29 at 170; Buklod ng Kawaning EIIB v. Zamora, supra note 29 at 294; and Larinv. Executive Secretary, supra note 29. [39] The procedure for appeals, as provided under Administrative Order No. 94, series of 2000, reads: General Guidelines on Appeals In order to properly and immediately address the appeals, issues and concerns of personnel, the following rules shall apply: 1. Appeals, oversights, issues and concerns related to personnel selection and placement shall be handled by an Appeals Committee. 2. For proper documentation, all appeals shall be made in writing. An Appeals Form shall be made available for all personnel. 3. All personnel concerned shall be given opportunity to present their side to assure utmost objectivity and impartiality. If and when necessary, hearings shall be conducted. 4. The Appeals Committee shall be expected to resolve issues, recommend options to the EXECOM or the concerned personnel within 15 working days upon receipt of the said appeal. [40] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, 171424, 3 May 2006, 489 SCRA 160, 258. [41] Agan, Sr. v. Philippine International Air Terminals Co., Inc., 450 Phil. 744, 803-804 (2003); Chavez v. Public Estates Authority, 433 Phil. 506, 526-528 (2002); and Kilosbayan, Inc. v. Guingona, G.R. 113375, 5 May 1994, 232 SCRA 110, 139. [42] G.R. No. 161065, 15 April 2005, 456 SCRA 450, 454-456.
[28] [29]

National Economic Protectionism Association v. Ongpin, G.R. No. 67752, 10 April 1989, 171 SCRA 657, 665. [44] Montesclaros v. Commission on Elections, 433 Phil. 620, 635-636 (2002). [45] 352 Phil. 153, 168-169 (1998).
[43]

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the

Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents. Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to (1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This

notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that: CAUSE OF ACTION 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors

and their successors who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6 On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the

dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to selfpreservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a

TLA remains effective for a certain period of time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by

the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and selfperpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably

accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: . . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18 It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative

actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson,
23

Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that: The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in

the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24 We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the nonimpairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides: . . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . . Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed. 27 cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED. Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of

certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and

economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity

to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination. # Footnotes 1 Rollo, 164; 186. 2 Id., 62-65, exclusive of annexes. 3 Under Section 12, Rule 3, Revised Rules of Court. 4 Rollo, 67. 5 Id., 74. 6 Rollo, 70-73. 7 Annex "B" of Petitions; Id., 43-44. 8 Paragraph 7, Petition, 6; Rollo, 20. 9 Webster's Third New International Dictionary, unabridged, 1986, 1508. 10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of 1987, E.O. No. 292.

11 Annex "B" of Petition; Rollo, 43-44. 12 Record of the Constitutional Commission, vol. 4, 913. 13 For instance, the Preamble and Article XII on the National Economy and Patrimony. 14 The Reorganization Act of the Department of Environment and Natural Resources. 15 E.O. No. 292. 16 Section 1. 17 Section 2. 18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251 [1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991]. 19 Section 1(q), Rule 16, Revised Rules of Court. 20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayn, supra; Madrona vs. Rosal, supra. 21 39 SCRA 473, 479 [1971]. 22 1991 ed., 226-227. 23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]. 24 Rollo, 44. 25 125 SCRA 302, 325 [1983]. 26 190 SCRA 673, 684 [1990]. 27 Article III, 1987 Constitution. 28 110 Phil. 198, 203 [1960]; footnotes omitted.

29 291 U.S. 502, 523, 78 L. ed. 940, 947-949. 30 22 SCRA 135, 146-147 [1968]. 31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil. American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987].

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents. Alfonso Mendoza for petitioners. City Fiscal Diaz for respondents. MALCOLM, J.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application forhabeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither

directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila. To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that

fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record. In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so. One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents. With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of society are nevertheless

not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts

should permit a government of men or a government of laws to be established in the Philippine Islands. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us. As to criminal responsibility, it is true that the Penal Code in force in these Islands provides: Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twentyfive and not more than six thousand two hundred and fifty pesetas. (Art. 211.) We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao,

and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a

minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . . It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition that the statutory provisions are confined to the case of imprisonment within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . . The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of

confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.) The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the

District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.) We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus. There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged. The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in

whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents. The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong. In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separatehabeas corpus proceedings. Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of Manila. The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the court was only tardily and reluctantly acknowledged. It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of

pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount is P100. In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record theReplica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered. In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. Arellano, C.J., Avancea and Moir, JJ., concur. Johnson, and Street, JJ., concur in the result.

Separate Opinions TORRES, J., dissenting: The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas corpusproceeding against Justo Lukban, the mayor of this city. There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to change their residence. We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of prostitution, as those in the said Gardenia Street,

Sampaloc. For this reason, when more than one hundred and fifty women were assembled and placed aboard a steamer and transported to Davao, considering that the existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority of any legal provision which constitutes an exception to the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila. We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The said governmental authority, in carrying out his intention to suppress the segregated district or the community formed by those women in Gardenia Street, could have obliged the said women to return to their former residences in this city or in the provinces, without the necessity of transporting them to Mindanao; hence the said official is obliged to bring back the women who are still in Davao so that they may return to the places in which they lived prior to their becoming inmates of certain houses in Gardenia Street. As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if we take into account the difficulties encountered in bringing the said women who were free at Davao and presenting them before this court within the time fixed, inasmuch as it does not appear that the said women were living together in a given place. It was not because they were really detained, but because on the first days there were no houses in which they could live with a relative independent from one another, and as a proof that they were free a number of them returned to Manila and the others succeeded in living separate from their companions who continued living together. To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their domicile, it is necessary to consider not only the rights and interests of the said women and especially of the patrons who have been directing and conducting such a reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights and interests of the very numerous people of Manila where relatively a few transients accidentally and for some days reside, the inhabitants thereof being more than three hundred thousand (300,000) who can not, with indifference and without repugnance, live in the same place with so many unfortunate women dedicated to prostitution. If the material and moral interests of the community as well as the demands of social morality are to be taken into account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution in the

midst of an enlightened population, for, although there were no positive laws prohibiting the existence of such houses within a district of Manila, the dictates of common sense and dictates of conscience of its inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to property. A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the administrative authority order his hospitalization, reclusion, or concentration in a certain island or distant point in order to free from contagious the great majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons exist or stand good with respect to the unfortunate women dedicated to prostitution, and such reasons become stronger because the first persons named have contracted their diseases without their knowledge and even against their will, whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences, knowing positively that their constant intercourse with men of all classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it constitutes a secret disease among men and women, is still prejudicial to the human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great mortality and very serious prejudice to poor humanity. If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is usually older than she is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily and with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution, because it is evident that she can not join the society of decent women nor can she expect to get the same respect that is due to the latter, nor is it possible for her to live within the community or society with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should therefore be comprised within that class which is always subject to the police and sanitary regulations conducive to the maintenance of public decency and morality and to the conservation of public health, and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been worrying so much about the prejudice resulting from a governmental measure, which being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city in general and particularly the duties and responsibilities weighing upon the authorities which administer and govern it; they have forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty bound to take care of their children. For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who is directly responsible for the conservation of public health and social morality, the latter could take the step he had taken, availing himself of the services of the police in good faith and only with the purpose of protecting the immense majority of the population from the social evils and diseases which the houses of prostitution situated in Gardenia Street have been producing, which houses have been constituting for years a true center for the propagation of general diseases and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses of prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free practice of their shameful profession. In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people, although it is true that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had in view the ultimate object of the Government for the sake of the community, that is, putting an end to the living together in a certain place of women dedicated to prostitution and changing their domicile, with the problematical hope that they adopt another manner of living which is better and more useful to themselves and to society. In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take back and restore the said women who are at present found in Davao, and who desire to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should expressly make known to the clerk of court their preference to reside in Davao, which manifestation must be made under oath. This resolution must be transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part: I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100. In the said decision, it is said: The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could not safely be brought before this court; and (3) presented affidavits to show that the parties in question or their lawyers waived their right to be present. According to the same decision, the said respondents ". . . did not produce the bodies of the persons in whose behalf the writ was granted; did not show impossibility of performance; and did not present writings, that waived the right to be present by those interested. Instead, a few stereotyped affidavits purporting to show that the women were contented with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated by the fact that during this time they were easily to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents." The majority opinion also recognized that, "That court, at the time the return to its first order was made, would have been warranted summarily in finding the respondent guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non production of the persons were far

from sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible effort to produce the women was made by the respondents." When the said return by the respondents was made to this court in banc and the case discussed, my opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order referred to in the decision was issued on December 10, 1918, requiring the respondents to produce before the court, on January 13, 1919, the women who were not in Manila, unless they could show that it was impossible to comply with the said order on the two grounds previously mentioned. With respect to this second order, the same decision has the following to say: In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and countercharges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. I do not agree to this conclusion. The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of the first order on November 4th till the 21st of the same month before taking the first step for compliance with the mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to the provincial governor o f Davao and naturally this halfhearted effort, as is so qualified in the decision, resulted in that none of the women appeared before this court on December 2nd. Thus, the said order was not complied with, and in addition to this noncompliance there was the circumstances that seven of the said women having returned to Manila at their own expense before the said second day of December and being in the antechamber of the court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were not produced before the court by the respondents nor did the latter show any effort to present them, in spite of the fact that their attention was called to this particular by the undersigned. The result of the said second order was, as is said in the same decision, that the respondents, on January 13th, the day fixed for the protection of the women before this court, presented technically the seven (7) women abovementioned who had returned to the city at their own expense and the other

eight (8) women whom the respondents themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing them from Davao with their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with free transportation, renounced such a right, as is shown in the affidavits presented by the respondents to this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to Manila and presented before this court by the respondents in compliance with the said two orders. Fifty-nine (59) of them have returned to Manila through other means not furnished by the respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their inability to present any of the said women that the latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74) women already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and the municipal police, and had transportation facilities for the purpose. But the said respondent mayor brought only eight (8) of the women before this court on January 13th. This fact can not, in my judgment, with due respect to the majority opinion, justify the conclusion that the said respondent has substantially complied with the second order of this court, but on the other hand demonstrates that he had not complied with the mandate of this court in its first and second orders; that neither of the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision, principally responsible for the contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second order confirms the contempt committed by non-compliance with the first order and constitutes a new contempt because of non-compliance with the second, because of the production of only eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and transported to Davao against their will, committing the twenty-six (26)

women who could not be found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals with the remedy of habeas corpus, presented by the petitioners and involving the question whether they should or not be granted their liberty, the respondent has not given due attention to the same nor has he made any effort to comply with the second order. In other words, he has disobeyed the said two orders; has despised the authority of this court; has failed to give the respect due to justice; and lastly, he has created and placed obstacles to the administration of justice in the said habeas corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said proceeding with the promptness which the nature of the same required. Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.) It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.) It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving the officer or circumventing him by any means, the result is the same as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.) While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the law and for the means it has provided in civilized communities for establishing justice, since true respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and obedience to their orders and just measures is so essentially a part of the life of the courts that it would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be said generally that where due respect for the courts as ministers of the law is wanting, a necessity arises for the use of compulsion, not, however, so much to excite individual respect as to compel obedience or to remove an unlawful or unwarranted interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.) The power to punish for contempt is as old as the law itself, and has been exercised from the earliest times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers, the law-making power, or the courts. In the American states the power to punish for contempt, so far as the executive department and the ministers of state are concerned, and in some degree so far as

the legislative department is concerned, is obsolete, but it has been almost universally preserved so far as regards the judicial department. The power which the courts have of vindicating their own authority is a necessary incident to every court of justice, whether of record or not; and the authority for issuing attachments in a proper case for contempts out of court, it has been declared, stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.) The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the authority of the court which issued the said orders, which loss might have been caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by some of the women illegally detained, in view of the fact that they were not brought to Manila by the respondents to be presented before the court and of the further fact that some of them were obliged to come to this city at their own expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the transportation of the said women; and the delay which was necessarily incurred in the resolution of the petition interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and duly obeyed and complied with, are circumstances which should be taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or both such fine and imprisonment. In the imposition of the penalty, there should also be taken into consideration the special circumstance that the contempt was committed by a public authority, the mayor of the city of Manila, the first executive authority of the city, and consequently, the person obliged to be the first in giving an example of obedience and respect for the laws and the valid and just orders of the duly constituted authorities as well as for the orders emanating from the courts of justice, and in giving help and aid to the said courts in order that justice may be administered with promptness and rectitude. I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him. Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the Attorney-General in order that, after a study of the same and deduction from the testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding informations for the prosecution and punishment of the crimes which have been committed on the occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and Chief of

Police Anton Hohmann, and also of those crimes committed by reason of the same detention and while the women were in Davao. This will be one of the means whereby the just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands there should exist a government of laws and not a government of men and that this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect individual liberty from illegal encroachments.

DISSENTING OPINION PUNO, J.: The case at bar transcends the political fortunes of respondent Senator Gregorio B. Honasan. At issue is the right of the people to elect their representatives on the basis and only on the basis of an informed judgment. The issue strikes at the heart of democracy and representative government for without this right, the sovereignty of the people is a mere chimera and the rule of the majority will be no more than mobocracy.To clarify and sharpen the issue, 1 shall first unfurl the facts. I. Facts

The facts are undisputed. In February 2001, a Senate seat for a term expiring on June 30, 2004 was vacated with the appointment of then Senator Teofisto Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001, and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. In the deliberations of the Senate on the resolution, the body agreed that the procedure it adopted for determining the winner in the special election was for the guidance and implementation of the COMELEC. The COMELEC had no discretion to alter the procedure. Nobody filed a certificate of candidacy to fill the position of senator to serve the unexpired three-year term in the special election. All the senatorial candidates filed the certificates of candidacy for the twelve regular Senate seats to be vacated on June 30, 2001 with a six-year term expiring on June 30, 2007. COMELEC distributed nationwide official documents such as the Voter Information Sheet, List of Candidates and Sample Ballot. The List of Candidates did not indicate a separate list of candidates for the special election. The Sample Ballot and the official ballots did not provide two different categories of Senate seats to be voted, namely the twelve regular sixyear term seats and the single three-year term seat. Nor did the ballots provide a separate space for the candidate to be voted in the special election and instead provided thirteen spaces for thirteen senatorial seats. Without any COMELEC resolution or notice on the time, place and manner of conduct of the special election, the special election for senator was held on the scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of senatorial candidates was done. On June 5, 2001, respondent

COMELEC promulgated COMELEC Resolution No. NBC01-005, the dispositive portion of which reads,viz: NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting En Banc as the National Board of Canvassers hereby proclaims the above-named thirteen (13) candidates as the duly elected Senators of the Philippines in the May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr., who was appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act No. 6645. (emphasis supplied) On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop respondent COMELEC from proclaiming any senatorial candidate in the May 14, 2001 election as having been elected for the lone senate seat for a three-year term. Copies of the petition were served on respondent COMELEC twice, first on June 20, 2001 by registered mail, and second on June 21, 2001, by personal delivery of petitioner Mojica. On June 26, 2001 the Court issued a Resolution requiring respondent COMELEC to comment within ten days from notice. Even before filing its comment, respondent COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the dispositive portion of which reads, viz: NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting as the National Board of Canvassers hereby DECLARES official and final the above ranking of the proclaimed 13 Senators of the Philippines in relation to NBC Resolution No. 01-005 promulgated June 5, 2001. Resolution No. NBC01-006 indicates the following ranking of the 13 Senators with the corresponding votes they garnered as of June 20, 2001: 1. De Castro, Noli L. 2. Flavier, Juan M. 3. Osmea, Sergio II R. 4. Drilon, Franklin M. 5. Arroyo, Joker P. 6. Magsaysay, Ramon Jr. B. 7. Villar, Manuel Jr. B. 8. Pangilinan, Francis N. 9. Angara, Edgardo J. 10. Lacson, Panfilo M. 11. Ejercito-Estrada, Luisa P. 12. Recto, Ralph 16,237,386 11,735,897 11,593,389 11,301,700 11,262,402 11,250,677 11,187,375 10,971,896 10,805,177 10,535,559 10,524,130 10,498,940

13. Honasan, Gregorio

10,454,527

On the day of its promulgation, respondent COMELEC forwarded Resolution No. NBC-01-006 to the President of the Senate. On July 23, 2001, the thirteen senators, inclusive of respondents Honasan and Recto, took their oaths of office before the Senate President. With the turn of events after the filing of the petition on June 20, 2001, the Court ordered petitioners on March 5, 2002 and September 17, 2002 to amend their petition. In their amended petition, petitioners assailed the manner by which the special election was conducted citing asprecedents the 1951 and 1955 special senatorial elections for a two-year term which were held simultaneously with the regular general elections for senators with six year terms, viz: (a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as Vice-President in the 1949 elections. A special election was held in November 1951 to elect his successor to the vacated Senate position for a term to expire on 30 December 1953. Said special election was held simultaneously with the regular election of 1951. A separate space in the official ballot was provided for Senatorial candidates for the two year term; moreover, the candidates for the single Senate term for two years filed certificates of candidacy separate and distinct from those certificates of candidacy filed by the group of Senatorial candidates for the six year term. (...the votes for the twenty (20) candidates who filed certificates of candidacy for the eight Senate seats with six year terms were tallied and canvassed separately from the votes for the five candidates who filed certificates of candidacy for the single Senate seat with a two year term...) xxx xxx xxx

(b) Again, a vacancy was created in the Senate by the election of then Senator Carlos P. Garcia to the Vice Presidency in the 1953 presidential elections. A special election was held in November 1955 to elect his successor to the vacated Senatorial position for a two year term expiring on 30 December 1957. Said special election for one senator to fill the vacancy left by the Honorable Carlos Garcia was held in November 1955 simultaneously with the regular election for eight Senate seats with a six year term. Here, separate spaces were provided for in the official ballot for the single Senate seat for the two year term as differentiated from the eight Senate seats with six year terms. The results as recorded by Senate official files show that votes for the candidates for the Senate seat with a two-year term were separately tallied from the votes for the candidates for the eight Senate seats with six-year term...[1](emphases supplied)

Petitioners thus pray that the Court declare the following: (a) that no special election was conducted by respondent COMELEC for the single Senate seat with a three year term in the 14 May 2001 election. null and void respondent COMELECs Resolutions No. NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having been promulgated without any legal authority at all insofar as said resolutions proclaim the Senatorial candidate who obtained the thirteenth highest number of votes canvassed during the 14 May 2001 election as a duly elected Senator.[2]

(b)

Respondents filed their respective comments averring the following procedural flaws: (1) the Court has no jurisdiction over the petition forquo warranto; (2) the petition is moot; and (3) the petitioners have no standing to litigate. On the merits, they all defend the validity of the special election on the ground that the COMELEC had discretion to determine the manner by which the special election should be conducted and that the electorate was aware of the method the COMELEC had adopted. Moreover, they dismiss the deviations from the election laws with respect to the filing of certificates of candidacy for the special elections and the failure to provide in the official ballot a space for the special election vote separate from the twelve spaces for the regular senatorial election votes as inconsequential. They claim that these laws are merely directory after the election. II. Issues

The issues for resolution are procedural and substantive. I shall limit my humble opinion to the substantive issue of whether a special election for the single Senate seat with a three-year term was validly held simultaneous with the general elections on May 14, 2001. III. Laws on the Calling of Special Elections

Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in the Senate and House of Representatives, viz: Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

Congress passed R.A. No. 6645, An Act Prescribing the Manner of Filling a Vacancy in the Congress of the Philippines, to implement this constitutional provision. The law provides, viz: SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If the Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things, the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. SECTION 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and public markets, and in the municipal buildings. (emphasis supplied) R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section 4, viz: SECTION 4. Postponement, Failure of Election and Special Election. - The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members... In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate,

the special election shall be held simultaneously with the next succeeding regular election. (emphases supplied) IV. Democracy and Republicanism

The shortest distance between two points is a straight line. In this case of first impression, however, the distance between existing jurisprudence and the resolution of the issue presented to the Court cannot be negotiated through a straight and direct line of reasoning. Rather, it is necessary to journey through a meandering path and unearth the root principles of democracy, republicanism, elections, suffrage, and freedom of information and discourse in an open society. As a first step in this indispensable journey, we should traverse the democratic and republican landscape to appreciate the importance of informed judgment in elections. A. Evolution of Democracy from Plato to Locke to Jefferson and Contemporary United States of America In the ancient days, democracy was dismissed by thoughtful thinkers. Plato deprecated democracy as rule by the masses. He warned that if all the people were allowed to rule, those of low quality would dominate the state by mere numerical superiority. He feared that the more numerous masses would govern with meanness and bring about a tyranny of the majority. Plato predicted that democracies would be short-lived as the mob would inevitably surrender its power to a single tyrant, and put an end to popular government. Less jaundiced than Plato wasAristotles view towards democracy. Aristotle agreed that under certain conditions, the will of the many could be equal to or even wiser than the judgment of the few. When the many governed for the good of all, Aristotle admitted that democracy is a good form of government. But still and all, Aristotle preferred a rule of the upper class as against the rule of the lower class. He believed that the upper class could best govern for they represent people of the greatest refinement and quality. In the Middle Ages, Europe plunged when the Roman Empire perished. Europe re-emerged from this catastrophe largely through reliance on the scientific method which ultimately ushered the Industrial Revolution. Material success became the engine which drove the people to search for solutions to their social, political and economic problems. Using the scythe of science and reason, the thinkers of the time entertained an exaggerated notion of individualism. They bannered the idea that all people were equal; no one had a greater right to rule than another. Dynastical monarchy was taboo. As all

were essentially equal, no one enjoyed the moral right to govern another without the consent of the governed. The people therefore were the source of legitimate legal and political authority. This theory of popular sovereignty revived an interest in democracy in the seventeenth century. The refinements of the grant of power by the people to the government led to the social contract theory: that is, the social contract is the act of people exercising their sovereignty and creating a government to which they consent.[3] Among the great political philosophers who spurred the evolution of democratic thought was John Locke (1632-1704). In 1688, the English revolted against the Catholic tyranny of James II, causing him to flee to France. This Glorious Revolution, called such because it was almost bloodless, put to rest the long struggle between King and Parliament in England. The revolution reshaped the English government and ultimately brought about democracy in England. John Locke provided the philosophical phalanx to the Glorious Revolution. For this purpose, he wrote his Second Treatise of Government, his work with the most political impact. In his monumental treatise, Locke asserted that the basis of political society is a contract whereby individuals consent to be bound by the laws of a common authority known as civil government. The objective of this social contract is the protection of the individuals natural rights to life, liberty and property which are inviolable and enjoyed by them in the state of nature before the formation of all social and political arrangements.[4] Locke thus argues that legitimate political power amounts to a form of trust, a contract among members of society anchored on their own consent, and seeks to preserve their lives, liberty and property. This trust or social contract makes government legitimate and clearly defines the functions of government as concerned, above all, with the preservation of the rights of the governed. Even then, Locke believed that the people should be governed by a parliament elected by citizens who owned property. Although he argued that the people were sovereign, he submitted that they should not rule directly. Members of parliament represent their constituents and should vote as their constituents wanted. The governments sole reason for being was to serve the individual by protecting his rights and liberties. Although Lockes ideas were liberal, they fell short of the ideals of democracy. He spoke of a middle-class revolution at a time when the British government was controlled by the aristocracy. While he claimed that all people were equally possessed of natural rights, he advocated that political power be devolved only to embrace the middle class by giving Parliament, which was controlled through the House of Commons, the right to limit the monarchical power. He denied political power to the poor; they were bereft of the right to elect members of Parliament.

Locke influenced Thomas Jefferson, the eminent statesman and philosopher of the (American) revolution and of the first constitutional order which free men were permitted to establish.[5] But although Jefferson espoused Lockes version of the social contract and natural law, he had respect for the common people and participatory government. Jefferson believed that the people, including the ordinary folk, were the only competent guardians of their own liberties, and should thus control their government. Discussing the role of the people in a republic, Jefferson wrote to Madison from France in 1787 that they are the only sure reliance for the preservation of our liberties.[6] The wave of liberalism from Europe notwithstanding, a much more conservative, less democratic, and more paternalistic system of government was originally adopted in the United States. The nations founders created a government in which power was much more centralized than it had been under the Articles of Confederation and they severely restricted popular control over the government.[7] Many of the delegates to the Constitutional Convention of 1787 adhered to Alexander Hamiltons view that democracy was little more than legitimized mob rule, a constant threat to personal security, liberty and property. Thus, the framers sought to establish a constitutional republic, in which public policy would be made by elected representatives but individual rights were protected from the tyranny of transient majorities. With its several elitist elements and many limitations on majority rule, the framers Constitution had undemocratic strands. The next two centuries, however, saw the further democratization of the federal Constitution.[8] The Bill of Rights was added to the American Constitution and since its passage, America had gone through a series of liberalizing eras that slowly relaxed the restraints imposed on the people by the new political order. The changing social and economic milieu mothered by industrialization required political democratization.[9] In 1787, property qualifications for voting existed and suffrage was granted only to white males. At the onset of Jacksonion democracy in the 1830s, property requirements quickly diminished and virtually became a thing of the past by the time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended the franchise to African-Americans, although it took another century of struggle for the Amendment to become a reality. In 1920, the Nineteenth Amendment removed sex as a qualification for voting. The Progressive Era also saw the Seventeenth Amendment of the Constitution to provide for direct election of United States senators[10] and established procedures for initiative, referendum and recall (otherwise known as direct democracy) in many states.[11] Poll taxes were abolished as prerequisites for voting in federal elections through the Twenty-Fourth Amendment in 1964. Finally, the voting age was lowered to eighteen with the ratification of the Twenty-Sixth Amendment in 1971.[12]

B. Constitutional History of Democracy and Republicanism in the Philippines The Malolos Constitution was promulgated on January 21, 1899 by the short-lived Revolutionary Government headed by Emilio Aguinaldo after the Declaration of Independence from Spain on June 12, 1898. Article 4 of the Constitution declared the Philippines a Republic, viz: Art. 4. The government of the Republic is popular,representative, alternative, and responsible and is exercised by three distinct powers, which are denominated legislative, executive and judicial... Shortly after the promulgation of the Malolos Constitution, the Philippines fell under American rule. The Americans adopted the policy of gradually increasing the autonomy of the Filipinos before granting their independence.[13] In 1934, the U.S. Congress passed the Tydings-McDuffie Law xxx the last of the constitutional landmarks studding the period of constitutional development of the Filipino people under the American regime before the final grant of Philippine independence.[14] Under this law, the American government authorized the Filipino people to draft a constitution in 1934 with the requirement that the constitution formulated and drafted shall be republican in form. In conformity with this requirement,[15] Article II, Section 1 of the 1935 Philippine Constitution was adopted, viz: Sec. 1. The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them. The delegates to the Constitutional Convention understood this form of government to be that defined by James Madison, viz: We may define a republic to be a government which derives all its power directly or indirectly from the great body of the people; and is administered by persons holding offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it. It is sufficient for such government that the person administering it be appointed either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.[16] (emphases supplied) The 1973 Constitution adopted verbatim Article II, Section 1 of the 1935 Constitution. So did the 1987 Constitution. The delegates to the 1986 Constitutional Commission well understood the meaning of a republican

government. They adopted the explanation by Jose P. Laurel in his book, Bread and Freedom, The Essentials of Popular Government, viz: When we refer to popular government or republican government or representative government, we refer to some system of popular representation where the powers of government are entrusted to those representatives chosen directly or indirectly by the people in their sovereign capacity.[17] (emphasis supplied) An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their sovereignty. Thus, under the 1987 Constitution, the people can directly exercise their sovereign authority through the following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people choose the representatives to whom they will entrust the exercise of powers of government.[18] In a plebiscite, the people ratify any amendment to or revision of the Constitution and may introduce amendments to the constitution.[19] Indeed, the Constitution mandates Congress to provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body. . . It also directs Congress to enact a local government code which shall provide for effective mechanisms of recall, initiative, and referendum.[20] Pursuant to this mandate, Congress enacted the Local Government Code of 1991 which defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance through an election called for the purpose. Recall is a method of removing a local official from office before the expiration of his term because of loss of confidence.[21] In a referendum, the people can approve or reject a law or an issue of national importance.[22]Section 126 of the Local Government Code of 1991 defines a local referendum as the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. These Constitutional provisions on recall, initiative, and referendum institutionalized the peoples might made palpable in the 1986 People Power Revolution.[23] To capture the spirit of People Power and to make it a principle upon which Philippine society may be founded, the Constitutional Commission enunciated as a first principle in the Declaration of Principles and State Policies under Section 1, Article II of the 1987 Constitution that the Philippines is not only a republican but also a democratic state. The following excerpts from the Records of the Constitutional Commission show the intent of the Commissioners in emphasizing democratic in Section 1, Article II, in light of the provisions of the Constitution on initiative, recall, referendum and peoples organizations:

MR. SUAREZ. . . . May I call attention to Section 1. I wonder who among the members of the committee would like to clarify this question regarding the use of the word democratic in addition to the word republican. Can the honorable members of the committee give us the reason or reasons for introducing this additional expression? Would the committee not be satisfied with the use of the word republican? What prompted it to include the word democratic? xxx xxx xxx

MR. NOLLEDO. Madam President, I think as a lawyer, the Commissioner knows that one of the manifestations of republicanism is the existence of the Bill of Rights and periodic elections, which already indicates that we are a democratic state. Therefore, the addition of democratic is what we call pardonable redundancy the purpose being to emphasize that our country is republican and democratic at the same time. . . In the 1935 and 1973 Constitutions, democratic does not appear. I hope the Commissioner has no objection to that word. MR. SUAREZ. No, I would not die for that. If it is redundant in character but it is for emphasis of the peoples rights, I would have no objection. I am only trying to clarify the matter.[24] (emphasis supplied) In other portions of the Records, Commissioner Nolledo explains the significance of the word democratic, viz: MR. NOLLEDO. I am putting the word democratic because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through peoples organizations . . .[25] xxx xxx xxx

MR. OPLE. The Committee added the word democratic to republican, and, therefore, the first sentence states: The Philippines is a republican and democratic state. May I know from the committee the reason for adding the word democratic to republican? The constitutional framers of the 1935 and 1973 Constitutions were content with republican. Was this done merely lor the sake of emphasis? MR. NOLLEDO. Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the Commissioner to know that democratic was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved

related to recall, peoples organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances. MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need. . . xxx xxx xxx

MR. NOLLEDO. According to Commissioner Rosario Braid, democracy here is understood as participatory democracy.[26] (emphasis supplied) The following exchange between Commissioners Sarmiento and Azcuna is of the same import: MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words republican state because republican state would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept republican state, we are stressing the participation of the people. . . So the word republican will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to add the word democratic to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives.[27] (emphasis supplied) V. Elections and the Right to Vote A. Theory

The electoral process is one of the linchpins of a democratic and republican framework because it is through the act of voting that government by consent is secured.[28] Through the ballot, people express their will on the defining issues of the day and they are able to choose their leaders[29] in accordance with the fundamental principle of representative democracy that the people should elect whom they please to govern them.[30] Voting has an important instrumental value in preserving the viability of constitutional democracy.[31] It has traditionally been taken as a prime indicator of democratic participation.[32] The right to vote or of suffrage is an important political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty.[33] In People v. Corral,[34] we held that (t)he modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons as are most likely to exercise it for the public good. The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights that it ought to be considered as one of the most sacred parts of the constitution.[35] In Geronimo v. Ramos, et al.,[36] we held that the right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through self-government for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run that government for him.[37]The U.S. Supreme Court recognized in Yick Wo v. Hopkins[38] that voting is a fundamental political right, because [it is] preservative of all rights. In Wesberry v. Sanders,[39] the U.S. Supreme Court held that no right is more precious in a free country than that of having a voice in the election of those who make the laws, under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Voting makes government more responsive to community and individual needs and desires. Especially for those who feel disempowered and marginalized or that government is not responsive to them, meaningful access to the ballot box can be one of the few counterbalances in their arsenal.[40] Thus, elections are substantially regulated for them to be fair and honest, for order rather than chaos to accompany the democratic processes.[41] This Court has consistently ruled from as early as the oft-cited 1914 case of Gardiner v. Romulo[42] that the purpose of election laws is to safeguard the will of the people, the purity of elections being one of the most important and fundamental requisites of popular government. We have consistently made it clear that we frown upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.[43] To preserve the purity of elections, comprehensive and sometimes complex election codes are enacted, each provision of which - whether it governs the registration and

qualifications of voters, the selection and eligibility of candidates, or the voting process itself - inevitably affects the individuals right to vote.[44] As the right to vote in a free and unimpaired manner is preservative of other basic civil and political rights, Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims[45] cautioned that any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. It was to promote free, orderly and honest elections and to preserve the sanctity of the right to vote that the Commission on Elections was created.[46] The 1987 Constitution mandates the COMELEC to ensure free, orderly, honest, peaceful, and credible elections.[47] B. History of Suffrage in the Philippines In primitive times, the choice of who will govern the people was not based on democratic principles. Even then, birth or strength was not the only basis for choosing the chief of the tribe. When an old chief has failed his office or committed wrong or has aged and can no longer function, the members of the tribe could replace him and choose another leader.[48] Among the Muslims, a council or ruma bechara chooses the sultan. An old sultan may appoint his successor, but his decision is not absolute. Among the criteria for choosing a sultan were age, blood, wealth, fidelity to Islamic faith and exemplary character or personality.[49] In times of crises, the community may choose its leader voluntarily, irrespective of social status. By consensus of the community, a serf or slave may be voted the chief on account of his ability. As far back as the Spanish regime, the Filipinos did not have a general right of suffrage.[50] It was only in the Malolos Constitution of 1899 that the right of suffrage was recognized;[51] it was a by-product of the Filipinos struggle against the Spanish colonial government and an offshoot of Western liberal ideas on civil government and individual rights.[52] The life of the Malolos Constitution was, however, cut short by the onset of the American regime in the Philippines. But the right of suffrage was reiterated in the Philippine Bill of 1902.[53] The first general elections were held in 1907[54] under the first Philippine Election Law, Aci No. 1582, which took effect on January 15, 1907. This law was elitist and discriminatory against women. The right of suffrage was carried into the Jones Law of 1916.[55] Whereas previously, the right was granted only by the Philippine Legislature and thus subject to its control, the 1935 Constitution elevated suffrage to a constitutional right.[56] It also provided for a plebiscite on the issue of whether the right of suffrage should be extended to women. On April 30, 1937, the plebiscite was held and the people voted affirmatively. In the 1973 Constitution,[57] suffrage was recognized not only as a right, but was imposed as a duty to broaden the electoral base and make democracy a reality through increased popular participation in government. The voting age was lowered, the literacy requirement abolished, and absentee

voting was legalized. [58] The 1987 Constitution likewise enshrines the right of suffrage in Article V, but unlike the 1973 Constitution, it is now no longer imposed as a duty.[59] The 1948 Universal Declaration of Human Rights[60] and the 1976 Covenant on Civil and Political Rights[61] also protect the right of suffrage. VI. Voter Information: Prerequisite to a Meaningful Vole in a Genuinely Free, Orderly and Honest Elections in a Working Democracy A. Democracy, information and discourse on public matters 1. U.S. jurisdiction For the right of suffrage to have a value, the electorate must be informed about public matters so that when they speak through the ballot, the knowledgeable voice and not the ignorant noise of the majority would prevail. Jefferson admonished Americans to be informed rather than enslaved by ignorance, saying that (i)f a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.[62] Jefferson emphasized the importance of discourse in a democracy, viz: In every country where man is free to think and to speak, differences of opinion arise from difference of perception, and the imperfection of reason; but these differences when permitted, as in this happy country, to purify themselves by discussion, are but as passing clouds overspreading our land transiently and leaving our horizon more bright and serene.[63] Other noted political philosophers like John Stuart Mill conceived of the marketplace of ideas as a necessary means of testing the validity of ideas, viz: (N)o ones opinions deserve the name of knowledge, except so far as he has either had forced upon him by others, or gone through of himself, the same mental process which could have been required of him in carrying on an active controversy with opponents.[64] In the same vein, political philosopher Alexander Meiklejohn, in his article Free Speech Is An Absolute, stressed that, (s)elf-government can exist only

insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.[65] To vote intelligently, citizens need information about their government.[66] Even during the diaper days of U.S. democracy, the Framers of the U.S. Constitution postulated that self-governing people should be well-informed about the workings of government to make intelligent political choices. In discussing the First Amendment, James Madison said: The right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right....[67] Thus, the United States, a representative democracy, has generally subscribed to the notion that public information and participation are requirements for a representative democracy where the electorate make informed choices. The First Amendment to the U.S. Constitution, which establishes freedom of the press and speech supports this proposition. The First Amendments jealous protection of free expression is largely based on the ideas that free and open debate will generate truth and that only an informed electorate can create an effective democracy.[68] The First Amendment reflects the Framers belief that public participation in government is inherently positive. An informed citizenry is a prerequisite to meaningful participation in government. Thus, the U.S. Congress embraced this principle more concretely with the passage of the Freedom of Information Act of 1966 (FO1A).[69] The law enhanced public access to and understanding of the operation of federal agencies with respect to both the information held by them and the formulation of public policy.[70] In the leading case on the FOIA, Environmental Protection Agency v. Mink,[71] Justice Douglas, in his dissent, emphasized that the philosophy of the statute is the citizens right to be informed about what their government is up to.[72] In Department of Air Force v. Rose,[73] the U.S. Supreme Court acknowledged that the basic purpose of the FOIA is to open agency action to the light of public scrutiny. These rulings were reiterated in the 1994 case of Department of Defense, et al. v. Federal Labor Relations Authority, et al.[74] Be that as it may, the U.S. Supreme Court characterized this freedom of information as a statutory and not a constitutional right in Houchins v. KQED, Inc., et al.,[75] viz: there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. . . The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.[76] Neither the courts nor Congress has recognized an affirmative constitutional obligation to disclose information concerning governmental affairs; the U.S. Constitution itself contains no language from which the duty could be readily inferred.[77] Nevertheless, the U.S. federal government, the fifty states and the District of Columbia have shown their commitment to public access to government-held information. All have statutes that allow varying degrees of access to government records.[78]

While the right of access to government information or the right to know is characterized as a statutory right, the right to receive information[79] was first identified by the U.S. Supreme Court as a constitutional right in the 1936 case of Grosjean v. American Press Company. [80] The Court also stated that the First Amendment protects the natural right of members of an organized society, united for their common good, to impart and acquire information about their common interests. Citing Judge Cooley, the Court held that free and general discussion of public matters is essential to prepare the people for an intelligent exercise of their rights as citizens.[81] The Court also noted that an informed public opinion is the most potent of all restraints upon misgovernment. Many consider Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council[82] the seminal right to receive case.[83] In this 1976 decision, the Court struck down a Virginia statute forbidding pharmacists from advertising the prices of prescription drugs. Writing for the majority, Justice Blackmun held that the free flow of information about commercial matters was necessary to ensure informed public decision-making. He reasoned that the protection of the First Amendment extends not only to the speaker, but to the recipient of the communication. Although the case dealt with commercial speech,the majority opinion made it clear that the constitutional protection for receipt of information would apply with even more force when more directly related to self-government and public policy.[84] In 1982, the U.S. Supreme Court highlighted the connection between selfgovernment and the right to receive information in Board of Education v. Pico.[85] This case involved a school board-ordered removal of books from secondary school libraries after the board classified the book as antiAmerican, anti-Christian, anti-Semitic, and just plain filthy.[86] Justice Brennan, writing for a three-justice plurality, emphasized the First Amendments role in assuring widespread dissemination of ideas and information. Citing Griswold v. Connecticut,[87] the Court held that (t)he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The Court noted thatthe right to receive ideas is a necessary predicate to the recipients meaningful exercise of his own rights of speech, press, and political freedom. It then cited Madisons admonition that, (a) popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.[88] The U.S. Supreme Court has reiterated, in various contexts, the idea that the Constitution protects the right to receive information and ideas.[89] Kleindienst v. Mandel [90] acknowledged a First Amendment right to receive information but deferring to Congress plenary power to exclude aliens. Lamont v. Postmaster General[91] invalidated a statutory requirement

that foreign mailings of communist political propaganda be delivered only upon request by the addressee. Martin v. City of Struthers[92] invalidated a municipal ordinance forbidding door-to-door distribution of handbills as violative if the First Amendment rights of both the recipients and the distributors.[93] Whether the right to know is based on a statutory right provided by the FOIA or a constitutional right covered by the First Amendment, the underlying premise is that an informed people is necessary for a sensible exercise of the freedom of speech, which in turn, is necessary to a meaningful exercise of the right to vote in a working democracy. In 1927, Justice Louis Brandeis gave the principle behind the First Amendment its classic formulation, viz: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion,they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[94] The U.S. Supreme Court also held in Stromberg v. California[95] that the First Amendment provides the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means...[96] The Amendment is the repository of...self-governing powers[97] as it provides a peaceful means for political and social change through public discussion. In Mills v. State of Alabama,[98] it ruled that there may be differences about interpretations of the First Amendment, but there is practically universal agreement that a major purpose of the Amendment was to protect the free discussion of

governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, all such matters relating to political processes.[99] Justice William J. Brennan summarized the principle succinctly in his opinion for the Court in Garrison v. Louisiana, viz: ...speech concerning public affairs is more than self-expression; it is the essence of self-government. (emphasis supplied) [100] 2. Philippine jurisdiction The electorates right to information on public matters occupies a higher legal tier in the Philippines compared to the United States. While the right to information in U.S. jurisdiction is merely a statutory right, it enjoys constitutional status in Philippine jurisdiction. The 1987 Constitution not only enlarged the democratic space with provisions on the electorates direct exercise of sovereignty, but also highlighted the right of the people to information on matters of public interest as a predicate to good governance and a working democracy. The Bill of Rights sanctifies the right of the people to information under Section 7, Article III of the 1987 Constitution, viz: 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. (emphasis supplied) This provision on the right to information sans the phrase as well as to government research data made its maiden appearance in the Bill of Rights of the 1973 Constitution. The original draft of the provision presented to the 1971 Constitutional Convention merely said that access to official records and the right to information shall be afforded the citizens as may be provided by law. Delegate De la Serna pointed out, however, that the provision did not grant a self-executory right to citizens. He thus proposed the rewording of the provision to grant the right but subject to statutory limitations.[101] The 1973 Constitution thus provided in Section 6, Article IV, viz: Sec. 6. 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, shall be afforded the citizen subject to such limitations as may be provided by law.

The change in phraseology was important as in the pre-1973 case of Subido v. Ozaeta,[102] this Court held that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution. In that case, the issue before the Court was whether the press and the public had a constitutional right to demand the examination of the public land records. The Court ruled in the negative but held that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate. As worded in the 1973 and 1987 Constitution, the right to information is self-executory. It is a public right where the real parties in interest are the people. Thus, every citizen has standing to challenge any violation of the right and may seek its enforcement.[103] The right to information, free speech and press and of assembly and petition and association which are all enshrined in the Bill of Rights are cognate rights for they all commonly rest on the premise that ultimately it is an informed and critical public opinion which alone can protect and uphold the values of democratic government.[104] In splendid symmetry[105] with the right to information in the Bill of Rights are other provisions of the 1987 Constitution highlighting the principle of transparency in government. Included among the State Policies under Article II of the 1987 Constitution is the following provision,viz: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (emphasis supplied) Related to the above provision is Section 21 of Article XI, National Economy and Patrimony, which provides, viz: Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public. (emphasis supplied) The indispensability of access to information involving public interest and government transparency in Philippine democracy is clearly recognized in the deliberations of the 1987 Constitutional Commission, viz: MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Trenas, Romulo, Regalado and Rosario Braid. It reads as follows: SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW. xxx xxx xxx

In the United States, President Aquino has made much of the point that the government should be open and accessible to the public. This amendment is by way of providing an umbrella statement in the Declaration of Principles for all these safeguards for an open and honest government distributed all over the draft Constitution. It establishes a concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the peoples right to know as the centerpiece.[106] (emphasis supplied) Commissioners Bernas and Rama made the following observations on the principle of government transparency and the publics right to information: FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the right to information) talks about the right of the people to information, and corresponding to every right is a duty. In this particular case, corresponding to this right of the people is precisely the duty of the State to make available whatever information there may be needed that is of public concern. Section 6 is very broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of Section 6 is that it challenges citizens to be active in seeking information rather than being dependent on whatever the State may release to them. xxx xxx xxx

MR. RAMA. There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights. The basic difference is that the Bill of Rights contemplates coalition (sic) (collision?) between the rights of the citizens and the State. Therefore, it is the right of the citizen to demand information. While under the Declaration of Principles, the State must have a policy, even without being demanded, by the citizens, without being sued by the citizen, to disclose information and transactions. So there is a basic difference here because of the very nature of the Bill of Rights and the nature of the Declaration of Principles.[107] (emphases supplied) The importance of information in a democratic framework is also recognized in Section 24, Article II, viz: Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied). Section 10 of Article XVI, General Provisions is a related provision. It states, viz: Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures

suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. (emphasis supplied) The sponsorship speech of Commissioner Braid expounds on the rationale of these provisions on information and communication, viz: MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision of society. Here we have a preferred vision where opportunities are provided for participation by as many people, where there is unity even in cultural diversity, for there is freedom to have options in a pluralistic society. Communication and information provide the leverage for power. They enable the people to act, to make decisions, to share consciousness in the mobilization of the nation.[108] (emphasis supplied) In Valmonte v. Belmonte,[109] the Court had occasion to rule on the right to information of a lawyer, members of the media and plain citizens who sought from the Government Service Insurance System a list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos.[110] In upholding the petitioners right, the Court explained the rationale of the right to information in a democracy, viz: This is not the first time that the Court is confronted wth a controversy directly involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April 2 , 1985, 136 SCRA 27 (involving the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens) and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (involving the concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles), the Court upheld the peoples constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners. xxx xxx xxx

An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions

operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated... xxx xxx xxx

...The right of access to information ensures that these freedoms are not rendered nugatory by the governments monopolizing pertinent information. For an essential element of these freedoms is to keep open in continuing dialogue or process of communication between the government, and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental decisionmaking as well as in checking abuse in government.[111] (emphases supplied) The Court made a similar ruling in Gonzales v. Narvasa[112] which involved the petitioners request addressed to respondent Executive Secretary Ronaldo B. Zamora for the names of the executive officials holding multiple positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacaang.[113] The respondent was ordered to furnish the petitioner the information requested. The Court held, viz: Under both the 1973 (footnote omitted) and 1987 Constitution, this (the right to information) is a self-executory provision which can be invoked by any citizen before the courts... Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that [t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful

democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times.[114] (emphases supplied) The importance of an informed citizenry in a working democracy was again emphasized in Chavez v. Public Estates Authority and Amari Coastal Bay Development Corporation[115] where we held, viz: The State policy of full transparency in all transactions involving public interest reinforces the peoples right to information on matters of public concern. xxx xxx xxx

These twin provisions (on right to information under Section 7, Article III and the policy of full public disclosure under Section 28, Article II) of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens may say, even if expressed without any restraint, will be speculative and amount to nothing.These twin provisions are also essential to hold public officials at all times x x x accountable to the people, (footnote omitted) for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.[116] (emphases supplied) B. Elections and the voters right to information on the elections 1. U.S. Jurisdiction An informed citizenrys opinions and preferences have the most impact and are most clearly expressed in elections which lie at the foundation of a representative democracy. The electorates true will, however, can only be intelligently expressed if they are well informed about the time, place, manner of conduct of the elections and the candidates therein. Without this information, democracy will be a mere shibboleth for voters will not be able to express their true will through the ballot.

In Duquette v. Merrill,[117] which the ponencia cites by reference to 26 American Jurisprudence 2d 292,[118] a vacancy in the office of Country Treasurer in York County occurred on July 24, 1944 upon the death of the incumbent Maynard A. Hobbs. The vacancy was filled in accordance with the law providing that the governor may appoint a resident of the county who shall be treasurer until the 1st day of January following the next biennial election, at which said election a treasurer shall be chosen for the remainder of the term, if any. The next biennial election was held on September 11, 1944. In the June 1944 primary election (prior to the death of Hobbs) where nominations of candidates for the upcoming biennial elections were made, there was no nomination for the office of County Treasurer as Hobbes term was yet to expire on January 1947. Neither was a special primary election ordered by proclamation of the Governor after Hobbes death. Nor were other legal modes of nominating candidates such as through nomination of a political party, convention of delegates or appropriate caucus resorted to. Consequently, in the official ballot of the September 11, 1944 election, there was no provision made for the selection of a County Treasurer to fill the vacancy for the unexpired term. The name of the office did not appear on the ballot. Petitioner Duquette, however, claims that he was elected County Treasurer in the special election because in the City of Biddeford, the largest city in York County, 1,309 voters either wrote in the title of the office and his name thereunder, or used a sticker of the same import and voted for him. At the September 11, 1944 biennial election, there were approximately 22,000 ballots cast, but none included the name of the petitioner except for the 1,309 in Biddeford. In holding that the special election was void, the Maine Supreme Judicial Court made the following pronouncements, the first paragraph of which was cited by theponencia in the case at bar, viz: Although there is not unanimity of judicial opinion as to the requirement of official notice, if the vacancy is to be filled at the time of a general election, yet it appears to be almost universally held that if the great body of the electors are misled by the want of such notice and are instead led to believe that no such election is in fact to be held, an attempted choice by a small percentage of the voters is void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted). Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting of an electoral body to discharge that particular duty, and is also an essential and characteristic element of a popular election. Public policy requires that it should be given in such form as to reach the body of the electorate. Here there had been no nominations to fill the vacancy, either by the holding of a special primary election, or by nomination by county political conventions or party committees. The designation of the office

to be filled was not upon the official ballot. As before noted, except for the vacancy, it would have no place there, as the term of office of the incumbent, if living, would not expire until January 1, 1947.[119] (emphases supplied) As early as the 1897 case of People ex rel. Dix v. Kerwin,[120] the requirement of notice in an election has been recognized, viz: ... We are not prepared to hold that this statute (requiring the giving of notice) is, under all circumstances and at all times, so far mandatory that a failure to observe its requirements will defeat an election otherwise regularly holden. There are many cases which hold that elections regularly held and persons regularly voted for on nominations made where there has been failure to observe some specific statutory requirement will not thereby be necessarily defeated and the direction may, because of the excusing circumstances, be held directory rather than mandatory. We do not believe the circumstances of the present case, as they are now exhibited, bring it all within this rule. The theory of elections is that there shall be due notice given to the voters, and that they must be advised either by a direct notice published by the clerk, as provided by statute, or by proceedings taken by the voters and the people generally in such a way as that it may be fairly inferred that it was generally and thoroughly well understood that a particular office was to be filled at the election, so that the voters should act understandingly and intelligently in casting their ballots. xxx xxx xxx

Since there was no notice published according to the statute, we may not assume that the nomination was regularly made, or that the voters were duly notified that the office was to be filled at that general election, nine days afterwards. It has been generally held that some notice, regular in its form, and pursuant to the requirements of law, must be given as a safeguard to popular elections, that the people may be informed for what officers they are to vote. Of course, it might easily be true, as has already been suggested, that, if nominations had been made for an office, certificates regularly filed, and tickets regularly printed, even though the clerk had failed to publish his notice, there would be no presumption that the body of the voters were uninformed as to their rights and as to the positions which were to be filled. People v. Porter, 6 Cal. 26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84 Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; Stephens v. People, 89 111. 337. [121](emphases supplied) Similarly, in Griffith v. Mercer County Court, et al.,[122] it was held, viz: There is a clear distinction between the case of a vacancy which is to be filled at a special election to be held at a time and place to be appointed by some

officer or tribunal, authorized by statute to call it, and a case where the statute itself provides for filling a vacancy at the next general election after it occurs. In such case nearly all the authorities hold that if the body of electors do in fact know the vacancy exists, and candidates are regularly nominated by the various political parties to fill it, and the candidates receive most of the votes cast, such election is valid, even though no notice thereof was published in a manner provided by the statute. It would be hypertechnical and unreasonable to hold that a failure to comply literally with the statute in such case would avoid the election.[123] (emphasis supplied) In Duquette, Kerwin and Griffith, as in a great majority of cases on the state level, the mere fact that the election to fill a vacancy occasioned by death, resignation, removal, or the like is held at the time of a general election in accordance with a constitutional or statutory provision, is not regarded as sufficient in itself to validate the election if no notice of the election was given; it has been held that in such a case, it must be shown that a sufficient part of the electors have actual notice that the vacancy is to be filled. The fact that a great percentage of voters cast their votes despite the failure of giving proper notice of the elections appears to be the most decisive single factor to hold that sufficient actual notice was given.[124] These doctrines were reiterated in Lisle, et al. v. C.L. Schooler[125] where it was held that mere allegation that many voters were informed that a special election to fill a vacancy was being held was unsatisfactory proof of sufficient notice. 2. Philippine jurisdiction In our jurisdiction, it is also the rule that the exercise of the right of suffrage should be an enlightened one, hence, based on relevant facts, data and information. It is for this reason that the choice of representatives in a democracy cannot be based on lottery or any form of chance.The choice must be based on enlightened judgment for democracy cannot endure the rule and reign of ignorance. This principle was stressed by the Court in Tolentino v. Commission on Elections.[126] The issue before the Court was whether the Constitutional Convention of 1971 had the power to call for a plebiscite for the ratification by the people of a partial constitutional amendment. The amendment was the proposal to lower the voting age to 18 but with the caveat that (t)his partial amendment, which refers only to age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution. The Court ruled in the negative, emphasizing the necessity

for the voter to be afforded sufficient time and information to appraise the amendment, viz: . . .No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. [127](emphasis supplied) The need for the voter to be informed about matters which have a bearing on his vote was again emphasized by the Court in UNIDO v. Commission on Elections.[128] This case involved the amendments to the 1973 Constitution proposed by the Batasang Pambansa in 1981. The Court reiterated that the more people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better. We held, viz: To begin with, we cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the free, orderly and honest elections clause of Section 5, Article X1I-C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it

is indispensable that they be properly characterized to be fair submission - by which is meant that the voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm conviction that the charters reference to honest elections connotes fair submission in a plebiscite. (emphasis supplied) Similarly, the Court ruled in Sanidad v. COMELEC[129] that plebiscite issues are matters of public concern and importance. The peoples right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. It cannot be overemphasized that an informed electorate is necessary for a truly free, fair and intelligent election. The voting age was lowered from 21 years to 18 years because the youth of 18 to 21 years did not differ in political maturity,[130] implying that political maturity or the capacity to discern political information is necessary for the exercise of suffrage. It is for this obvious reason that minors and the insane are not allowed to vote. Likewise, the literacy test for the right to vote was abolished because as explained by the Committee on Suffrage and Electoral Reforms of the 1971 Constitutional Convention, the requirement to read and write was written into our constitution at a time when the only medium of information was the printed word and even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast majority of the population learn about national matters much more from the audio-visual media, namely, radio and television, and public meetings have become much more effective since the advent of amplifying equipment. Again, the necessity of information relevant to an election is highlighted. Similarly, in the 1986 Constitutional Commission, Commissioner Bernas, in justifying enfranchisement of the illiterates, spoke of their access to information relevant to elections, viz: If we look at...the communication situation in the Philippines now, the means of communication that has the farthest reach is AM radio. People get their information not from reading newspapers but from AM radio - farmers while plowing, and vendors while selling things listen to the radio. Without knowing how to read and write, they are adequately informed about many things happening in the country.[131] Several election cases, albeit not involving an issue similar to the case at bar, affirm the necessity of an informed electorate in holding free, intelligent and clean elections. In Blo Umpar Adiong v. Commission on Elections[132] where this Court nullified a portion of a COMELEC Resolution prohibiting the posting of candidates decals and stickers on mobile places and limiting their location to authorized posting areas, we held, viz:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964]...) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest. We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, 36 SCRA 228 [1970]). xxx xxx xxx

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the States power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. xxx xxx xxx

...we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]).[133] To facilitate the peoples right to information on election matters, this Court, in Telecommunications and Broadcast Attorneys of the Philippines, Inc., et al. v. COMELEC[134] upheld the validity of COMELECs procurement of print space and airtime for allocation to candidates, viz: With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through

which candidates can advertise their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations to provide airtime unless paid by the government would clearly deprive the people of their right to know. Art. III, 7 of the Constitution provides that the right of the people to information on matters of public concern shall be recognized...[135] (emphasis supplied) The importance of the peoples acquisition of information can be gleaned from several provisions of the Constitution under Article IX (C), The Commission on Elections. Section 4 provides that the COMELEC is given the power to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concession granted by the Government... Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Section 6 provides that, (a) free and open party system shall be allowed to evolve according to the free choice of the people. Section 2(5) of the same article requires political parties, organizations and coalitions to present their platform or program of government before these can be registered. In the robust and wide open debate of the electorate, these programs of government are important matters for discussion. The deliberations of the Constitutional Commission on whether voting of Congressmen should be by district or province also evince a clear concern for intelligent voting, viz: SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our political system, especially in the campaign, is that many of us vote by personality rather than by issue. So I am inclined to believe that in the elections by district, that would be lessened because we get to know the persons running more intimately. So we know their motivation, their excesses, their weaknesses and there would be less chance for the people to vote by personality. I was wondering whether the Commission shares the same observation. MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote would no longer be personalities but more on issues, because the relationship is not really very personal. Whereas, if it would be by district, the vote on personality would be most impressive and dominant. SR. TAN. I cannot quite believe that. It would be like a superstar running around.

MR. DAVIDE. For instance, we have a district consisting of two municipalities. The vote would be more on personalities. It is a question of attachment; you are the godson or the sponsor of a baptism, like that. But if you will be voted by province, its your merit that will be counted by all others outside your own area. In short, the more capable you are, the more chance you have of winning provincewide.[136] Several provisions of our election laws also manifest a clear intent to facilitate the voters acquisition of information pertaining to elections to the end that their vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or the Omnibus Election Code gives the COMELEC the following power and duty: (j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the work and duties of the Commission and the necessity of clean, free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC) (k) Enlist non-partisan groups or organizations of citizens from the civic, youth, professional, educational, business or labor sectors known for their probity, impartiality and integrity...Such groups or organizations...shall perform the following specific functions and duties: A. Before Election Day: 1. Undertake an information campaign on salient features of this Code and help in the dissemination of the orders, decisions and resolutions of the Commission relative to the forthcoming election. (emphasis supplied) Section 87 of Article X of B.P. Blg. 881 also provides, viz: Section 87. xxx Public Forum. - The Commission shall encourage non-political, nonpartisan private or civic organizations to initiate and hold in every city and municipality, public for at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and programs and other like issues... (emphasis supplied) Section 93 of the same Article provides, viz: Section 93. Comelec information bulletin. - The Commission shall cause the printing, and supervise the dissemination of bulletins to be known as Comelec Bulletin which shall be of such size as to adequately contain the picture, bio-data and program of government of every candidate. Said bulletin

shall be disseminated to the voters or displayed in such places as to give due prominence thereto. (emphasis supplied) Of the same import is Section 25 of R.A. No. 8436, An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 Elections and Subsequent Electoral Exercises which provides, viz: Section 25. Voters Education. - The Commission together with and in support of accredited citizens arms shall cany out a continuing and systematic campaign though newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other nontraditional means to educate the public and fully inform the electorate about the automated election system and inculcate values on honest, peaceful and orderly elections. (emphasis supplied) Similarly, R.A. No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, approved a few months before the May 2001 elections or on February 12, 2001 provides in Section 6.4, viz: Sec. 6.4. xxx xxx xxx

In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending. (emphasis supplied) The Omnibus Election Code also provides for procedures and requirements that make the election process clear and orderly to avoid voter confusion. Article IX of the Code provides, viz: Section 73. Certificate of candidacy.- No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. xxx xxx xxx

No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them... xxx xxx xxx

Certificates of Candidacy; Certified List of Candidates. ... ...the Commission shall cause to be printed certified lists of candidates containing the names of all registered candidates for each office to be voted for in each province, city or municipality immediately followed by the nickname or stage name of each candidate duly registered in his certificate of candidacy and his political affiliation, if any. Said list shall be posted inside each voting booth during the voting period. xxx xxx xxx

The names of all registered candidates immediately followed by the nickname or stage name shall also be printed in the election returns and tally sheets(R.A. No. 6646, Sec. 4) Section. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office;... Article XVI, Section 181, also provides, viz: Section 181. Official ballots. xxx xxx xxx

(b) The official ballot shall also contain the names of all the officers to be voted for in the election, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name or names of individual candidates voted for by him. In the case of special elections, the need for notice and information is unmistakable under Section 7 of the Omnibus Election Code of the Philippines, as amended by R.A. No. 7166, which provides, viz: Sec. 7. Call for special election. - In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election. (R.A. No. 7166, Sec. 4) The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code

shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (R.A. No. 7166, Sec. 4) The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. (1978 EC, Sec. 8) (emphasis supplied) In Hassan v. COMELEC, et al.,[137] we ruled that constituents could not be charged with notice of a second special elections held only two days after the failure of the special election. This case involved the May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to the threats of violence and terrorism in the area, there was a failure of election in six out of twenty-four precincts in Madalum. A special elections was set on May 27, 1995 but the Board of Election Inspectors failed to report for duty due to the threats of violence. The Monitoring Supervising Team of the COMELEC reset the special elections to May 29, 1995 in a school 15 kilometers away from the designated polling places. In ruling that the May 29 special elections was invalid, the Court ruled, viz: We cannot agree with the COMELEC that petitioner, his followers or the constituents must be charged with notice of the special elections to be held because of the failure of the two (2) previous elections. To require the voters to come to the polls on such short notice was highly impracticable. In a place marred by violence, it was necessary for the voters to be given sufficient time to be notified of the changes and prepare themselves for the eventuality. It is essential to the validity of the election that the voters have notice in some form, either actual or constructive of the time, place and purpose thereof. (Furste v. Gray, 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for holding it must be authoritatively designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority after the happening of a condition precedent, or at least there must be a substantial compliance therewith so that it may fairly and reasonably be said that the purpose of the statute has been carried into effect. (State ex. rel. Stipp v. Colliver, supra). The sufficiency of notice is determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on the other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise so as to change the result of the

election. (Housing Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal Rptr, other citations omitted) xxx xxx xxx

...even in highly urbanized areas, the dissemination of notices poses to be a problem. In the absence of proof that actual notice of the special elections has reached a great number of voters, we are constrained to consider the May 29 elections as invalid...(emphases supplied) Although this case did not involve a special election held simultaneously with a general election by mandate of law as in the case bar, the doctrine that can be derived from this case is that the electorate must be informed of the special election as proved by official or actual notice. VII. Application of the Principles of Democracy, Republicanism Freedom of Information and Discourse to the Case at Bar The 1987 Constitution, with its declaration that the Philippines is not only a republican but also a democratic state, and its various provisions broadening the space for direct democracy unmistakably show the framers intent to give the Filipino people a greater say in government. The heart of democracy lies in the majoritarian rule but the majoritarian rule is not a mere game of dominant numbers. The majority can rule and rule effectively only if its judgment is an informed one. With an informed electorate, a healthy collision of ideas is assured that will generate sparks to fan the flames of democracy. Rule by the ignorant majority is a sham democracy - a mobocracy - for in the words of Jefferson, a nation cannot be both free and ignorant. If there is anything that democracy cannot survive, it is the virus of ignorance. Elections serve as a crevice in the democratic field where voters, for themselves and the public good, plant the seeds of their ideals and freedoms. Yick Wo is emphatic that voting is a fundamental right that preserves and cultivates all other rights. In a republic undergirded by a social contract, the threshold consent of equal people to form a government that will rule them is renewed in every election where people exercise their fundamental right to vote to the end that their chosen representatives will protect their natural rights to life, liberty and property. It is this sacred contract which makes legitimate the governments exercise of its powers and the chosen representatives performance of their duties and functions. The electoral exercise should be nothing less than a pure moment of informed judgment where the electorate speaks its mind on the issues of the day and choose the men and women of the hour who are seeking their mandate. The importance of information and discourse cannot be overemphasized in a democratic and republican setting. Our constitutional

provisions and cases highlighting the peoples right to information and the duty of the State to provide information unmistakably recognize the indispensable need of properly informing the citizenry so they can genuinely participate in and contribute to a functioning democracy. As elections lie at the foundation of representative democracy, there should be no quarrel over the proposition that electoral information should also be disseminated to the electorate as a predicate to an informed judgment. The ponencia concedes that a survey of COMELECs resolutions relating to the conduct of the May 14, 2001 elections would reveal that they contain nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Nowhere in its resolutions or even its press releases did COMELEC state that it would hold a special election for a single Senate seat with a three-year term simultaneously with the regular elections on May 14, 2001. Nor did COMELEC give official notice of the manner by which the special election would be conducted, i.e., that the senatorial candidate receiving the 13th highest number of votes in the election would be declared winner in the special election. Still, the ponencia upheld the holding of the May 14, 2001 special election despite the lack of call for such election and ... lack of notice as to the office to be filled and the manner by which the winner in the special election is to be determined. With all due respect, I cannot subscribe to the ponencias position for it leaves the purity of elections and the ascertainment of the will of the electorate to chance, conjecture and speculation. Considering that elections lie at the heart of the democratic process because it is through the act of voting that consent to government is secured, I choose to take a position that would ensure, to the greatest extent possible, an electorate that is informed, a vote that is not devalued by ignorance and an election where the consent of the governed is clear and unequivocal. The ponencia justifies its position on the lack of call or notice of the time and place of the special election by holding that the law charges voters with knowledge of R.A. No. 7166 which provides that in case of a vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding election, that is, the May 14, 2001 election. The ponencias argument is that the provisions of R.A. No. 7166 stating that the special election would be held simultaneously with the regular election operated as a call for the election so that the absence of a call by the COMELEC did not taint the validity of the special election. With due respect, this is not the intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election, the law nevertheless required in paragraph 3 of the same section that (t)he Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for

dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. The Duquette case cited by the ponencia does not lend support to its thesis that statutory notice suffices. In Duquette, it was held that in the absence of an official notice of the special election mandated by law to be held simultaneously with the general election, there should be actual notice of the electorate. Actual notice may be proved by the voting of a significant percentage of the electorate for the position in the special election or by other acts which manifest awareness of the holding of a special election such as nomination of candidates.In the case at bar, however, the number of votes cast for the special election cannot be determined as the ballot did not indicate separately the votes for the special election. In fact, whether or not the electorate had notice of the special election, a candidate would just the same fall as the 13th placer because more than twelve candidates ran for the regular senatorial elections. Nobody was nominated to vie specifically for the senatorial seat in the special election nor was there a certificate of candidacy filed for that position. In the absence of official notice of the time, place and manner of conduct of the special election, actual notice is a matter of proof. Respondents and the ponencia cannot point to any proof of actual notice. With respect to the lack of notice of the manner by which the special election would be conducted, i.e., that the 13th placer would be declared winner in the special election, there can be no debate that statutory notice will not operate as notice to the electorate as there is no lawproviding that a special election held simultaneously with a general election could be conducted in the manner adopted by the Senate and the COMELEC. Instead, the ponencia buttresses its holding by stating that the petitioner has not claimed nor proved that the failure of notice misled a sufficient number of voters as would change the result of the special senatorial election. It relies on actual notice from many sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda during the campaign but without even identifying these media reports and election propaganda. Suffice to state that before the ponencia can require proof that a sufficient number of voters was misled during the May 14, 2001 elections, it must first be shown that in the absence of official notice of the procedure for the special election, there was nevertheless actual notice of the electorate so that the special election could be presumed to be valid. Only then will the duty arise to show proof that a sufficient number of voters was misled to rebut the presumption of validity. I respectfully submit that the electorate should have been informed of the time, place and manner of conduct of the May 14, 2001 special election for the single senatorial seat for the unexpired term of former Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened the doctrine that a meaningful exercise of the right of suffrage in a genuinely free, orderly and honest election is predicated upon an electorate

informed on the issues of the day, the programs of government laid out before them, the candidates running in the election and the time, place and manner of conduct of the election. It is for this reason that the Omnibus Election Code is studded with processes, procedures and requirements that ensure voter information. Bince and Benito further teach us that free and intelligent vote is not enough; correct ascertainment of the will of the people is equally necessary. The procedure adopted in the case at bar for holding the May 14, 2001 special senatorial election utterly failed to ascertain the peoples choice in the special election. Section 2 of R.A. No. 7166 provides that the special election shall be held simultaneously with such general election. It does not contemplate, however, the integration of the special senatorial election into the regular senatorial election whereby candidates who filed certificates of candidacy for the regular elections also automatically stand as candidates in the special election. The Omnibus Election Code is crystal clear that a candidate can run for only one position in an election. Consequently, there were no candidates in the special election to vote for. Separate sets of candidates for the special election and the regular elections are decisive of the election results. Each independent-minded voter could have a variety of reasons for choosing a candidate to serve for only the unexpired term of three years instead of the regular term of six years or not choosing a candidate at all. A voter might choose a neophyte to serve the three-year term as a shorter trial period. Another might be minded to choose an old timer to compel him to hasten the completion of his projects in a shorter period of three years. Still another might want to afford a second termer who has not performed too satisfactorily a second chance to prove himself but not for too long a period of six years. In not allowing the voter to separately indicate the candidate he voted for the three-year senatorial term, the voter was deprived of his right to make an informed judgment based on his own reasons and valuations. Consequently, his true will in the special election was not ascertained. As a particle of sovereignty, it is the thinking voter who must determine who should win in the special election and not the unthinking machine that will mechanically ascertain the 13th placer in the general election by mathematical computations. The models to follow in the conduct of special elections mandated by law to be held simultaneously with a general elections are the special elections of November 13, 1951 and November 8, 1955 to fill the seats vacated by then Senators Fernando Lopez and Carlos P. Garcia, respectively. In these special senatorial elections, election activities prior (i.e., filing of certificate of candidacies), during (i.e., the act of voting for a special election candidate distinct from the candidates for the regular election) and after the election (i.e., tallying and canvassing of results) were conducted simultaneously with, but distinctly from the regular senatorial elections. This procedure minimized voter confusion and allowed the voter to freely and accurately speak his mind

and have his will truly ascertained. Regrettably, this objective appears to have been lost in the calling of the May 14, 2001 special election as can be gleaned from the Senate deliberations on the resolution calling for that election, viz: S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona. S[ENATOR] O[SMEA]. (J). Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can...No, this is not a Concurrent Resolution. S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President. T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President. It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in such a manner. xxx S[ENATOR] R[OCO]. Mr. President. T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized. S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less expensive because the ballot will be printed and there will be less disenfranchisement. T[HE] P[PRESIDENT]. That is right. S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law. xxx xxx

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec. S[ENATOR] R[OCO]. Yes. T[HE] P[RESIDENT]. - to implement. S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility. T[HE] P[RESIDENT]. That is right. S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously a? a special election under this law as we understand it. T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco. S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President. T[HE P[RESIDENT]. What does the sponsor say? S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically T[HE] P[RESIDENT]. Correct. S[ENATOR] T[ATAD]. - to fill up this position for three years and campaigning nationwide. T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups. S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13. T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution. S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution. ADOPTION OF S. RES. NO. 934 If there are not other proposed amendments, I move that we adopt this resolution.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being none, the motion is approved.[138] (emphases supplied) The Senates observation that the procedure for the special election that it adopted would be less costly for the government as the ballots need not be printed again to separately indicate the candidate voted for the special election does not also lend justification for the manner of conduct of the May 14, 2001 special election. We cannot bargain the electorates fundamental right to vote intelligently with the coin of convenience. Even with the Senate stance, the regular ballot had to be modified to include a thirteenth space in the list of senatorial seats to be voted for. At any rate, reliance on R.A. No. 6645 is erroneous. This law provides that when a vacancy arises in the Senate, the Senate, by resolution, certifies to the existence of the vacancy and calls for a special election. Upon receipt of the resolution, the COMELEC holdsthe special election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The latter law provides that when a permanent vacancy occurs in the Senate at least one year before the expiration of the term, the Commission (on Elections) shall call and hold a special election to fill the vacancy... Since under R.A. No. 7166, it is the power and duty of the COMELEC, and not the Senate, to call and hold the election, the Senate cannot, by mere resolution, impose upon the COMELEC the procedure for the special election that it intended such that Comelec will not have the flexibility to deviate therefrom. As a constitutional body created to ensure free, orderly, honest, peaceful, and credible elections, it was the duty of the COMELEC to give to the electorate notice of the time, place and manner of conduct of the special elections and to adopt only those mechanisms and procedures that would ascertain the true will of the people. In sum, I submit that the ruling of the ponencia would result not just to a step back in an age of information, but would constitute a fall in the nations rise to democracy begun as early as the Malolos Constitution and begun anew in the 1987 Constitution after the 1986 People Power Revolution. Informing the electorate on the issues and conduct of an election is a prerequisite to a free, orderly, honest, peaceful, and credible elections. Free elections does not only mean that the voter is not physically restrained from going to the polling booth, but also that the voter is unrestrained by the bondage of ignorance. We should be resolute in affirming the right of the electorate to proper information. The Court should not forfeit its role as gatekeeper of our democratic government run by an informed majority. Let us not open the door to ignorance. I vote to grant the petition.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT 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. Melville Hussey for respondents. 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 19433 and 19444 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 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 petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding with the case of petitioners. 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 provision 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 petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law 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 State 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 appointment as prosecutor 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 prosecution the United State not being a party in interest in the case. Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th days 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 of the nation. In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person 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 Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution. The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may remain pending which should be disposed of as in time of war. An importance incident to a conduct of war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measure 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 of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America 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 criminal 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 regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule 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 rule and principle of international law as continued inn 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 United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): . . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during then Commonwealth because it is an offense against 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 attorney's are not qualified to practice law in 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 court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said executive order 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 facts 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 nation sovereignty. It is only fair and proper that 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 State 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 State 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 State 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 said petitioner in its custody, this Court will not interfere with the due process of such Military commission. For all the foregoing the petition is denied with costs de oficio. Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions PERFECTO, J., dissenting: A military commission was empanelled 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 prosecutor representing the American CIC in the trial of the case. The commission was empanelled 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 consideration 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 person cannot appear as prosecutors in petitioner 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 question involved in the challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a clear idea of the question 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 REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL. I, Manuel Roxas president of the Philippines by virtue of the power 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 regulation 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 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 power and shall exchange with the said Office information and evidence of war crimes. The following rules and regulation shall govern the trial off person accused as war criminals: ESTABLISHMENT OF MILITARY COMMISSIONS (a) General. person accused as war criminal shall be tried by military commission to be convened by or under the authority of the Philippines.

II. JURISDICTION (a) Over Person. Thee military commission 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 commission 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 agreement or assurance or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or deportation to slave labor or for other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere; improper treatment of hostage; plunder of public or private property wanton destruction of cities towns or village; or devastation not justified by military necessity. (3) Murder extermination enslavement deportation and other inhuman acts committed against civilian population before or during the war or persecution on political racial or religion ground in executive 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 shall attend all session 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 filled by the convening authority but the substance of all proceeding had evidence taken in that case shall be made known to the said new member or alternate. This facts 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 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 finding of the Commission shall be by majority vote except that conviction and sentence shall be by the affirmative vote of not less than conviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member present. (e) Presiding Member. In the event that the convening authority does not name one of the member as the presiding member, the senior officer among the member of the Commission present shall preside. IV. PROSECUTORS (a) Appointment. The convening authority shall designate one or more person to conduct the prosecution before each commission. (b) Duties. The duties of the prosecutor 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. POWER AND PROCEDURE OF COMMISSION (a) Conduct of the Trial. A Commission shall: (1) Confine each trial strictly to 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 session 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 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 commission's 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 of any medical service personnel, or by any investigator or intelligence officer, or by any other person whom commission considers as possessing knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements. (d) Any diary, letter to other document, including sworn 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 Nation. (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 accused's 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 purposed confessions or statements of the accused shall bee admissible in evidence without any showing that they were voluntarily made. If it is shown that such confession or statement was procured by mean which the commission believe to have been of such a character that 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." (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. (4) 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 he evidence before 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. (5) The defense may make an opening statement prior to presenting its case. The presiding member may, at this 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. (6) 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. (7) The defense and thereafter the prosecution shall address the commission. (8) 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 reason on which judgment is based. ( f ) Record of Proceedings. Each commission shall make a separate record of its proceeding 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 off 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 General's Office. The Chief of Staff shall have 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 final and not subject to review by any other tribunal.

VI. RULE-MAKING POWER Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern its procedure, not inconsistent with the provision 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 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 recommendation of the Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property Commission are hereby specification reserved for use off the National War Crimes Office. Executive Order No. 64, dated August 16, 1945, 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 Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment. The first question that is trust at our face spearheading a group of other no less important question, 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 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 President of the Philippines, to the specific provision 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 member of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and practiced by modern democracies, especially the United State of America, whose Constitution, after which ours has been patterned, has allocated the three power of government legislative, executive, judicial to distinct and separate department of government. Because the power vested by our Constitution to the several department of the government are in the nature of grants, not recognition of pre-existing power, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue 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 person 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 charge with war crimes. The power to define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution in Congress. . It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court. It authorized military commission to adopt additional rule 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 commission. It appropriates the sum of P7000,000 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, though it the President of the Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme Court. Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68, respondent 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 power 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 REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY 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 power in order to safeguard the integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive 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 off law until the date of adjournment of the next regulation 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 Philippines. Such rules and regulation 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 bee necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger and destitution; (4) to take over industrial establishment 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 commandership 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 control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical, building, material, 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 objective, 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 this Act or 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 charge 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 purposed of this Act, the President is authorized to spend such amounts as may be necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and ninety-eight. SEC. 6. If any province 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 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 RULE AND REGULATIONS TO MEET SUCH EMERGENCY. Be it enacted the National Assembly of the Philippines; SECTION 1. The existed of war between the United State 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 provision of Article VI, section 16, of the Constitution, the President is hereby authorized, during the existence of the emergency, to promulgate such rules and regulation 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, department, 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 Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and appropriation which would lapse or otherwise became inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to imposed 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 expensive 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 power 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 report thereto all the rules and regulation promulgated by him under the power 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, Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines form 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 as chairman of the Committee on Third Reading population 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 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 power were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution: In time 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 declared national policy. (Article VI, section 26.) It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created by the war as to extend it farther would be violative of the express provision 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 district, separate and independence 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 emergency 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 Philippines 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 he 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 guarantees of the due process and equal protection of the law. It is especially so, because it permit the admission of many kinds evidence by which no innocent person can afford to get acquittal and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can expected. For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant petition.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner, vs. EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1

Marcelino Lontok for petitioner. P. A. Revilla for respondent Valdez Tan Keh. Respondent Judge Dizon in his own behalf. FERIA, J.: This petition for mandamus in which petitioner prays that the respondent judge of the lower court be ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated under the regime of the so-called Republic of the Philippines established during the Japanese military occupation of these Islands. The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of invalidating and nullifying all judicial proceedings and judgements of the court of the Philippines under the Philippine Executive Commission and the Republic of the Philippines established during the Japanese military occupation, and that, furthermore, the lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an enabling law granting such authority. And the same respondent, in his answer and memorandum filed in this Court, contends that the government established in the Philippines during the Japanese occupation were no de facto governments. On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the Army." In said proclamation, it was also provided that "so far as the Military Administration permits, all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be effective for the time being as in the past," and "all public officials shall remain in their present posts and carry on faithfully their duties as before." A civil government or central administration organization under the name of "Philippine Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was instructed to proceed to the immediate coordination of the existing central administrative organs and judicial courts, based upon what had existed therefore, with approval of the said Commander in Chief, who was to exercise jurisdiction over judicial courts. The Chairman of the Executive Commission, as head of the central administrative organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the peace and municipal courts under the Commonwealth were continued with the same jurisdiction, in conformity with the instructions given to the said Chairman of the Executive Commission by the Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning

basic principles to be observed by the Philippine Executive Commission in exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities of the administration organs and judicial courts in the Philippines shall be based upon the existing statutes, orders, ordinances and customs. . . ." On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial change was effected thereby in the organization and jurisdiction of the different courts that functioned during the Philippine Executive Commission, and in the laws they administered and enforced. On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a proclamation to the People of the Philippines which declared: 1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control; 2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control. On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General MacArthur, on behalf of the Government of the United States, solemnly declared "the full powers and responsibilities under the Constitution restored to the Commonwealth whose seat is here established as provided by law." In the light of these facts and events of contemporary history, the principal questions to be resolved in the present case may be reduced to the following:(1) Whether the judicial acts and proceedings of the court existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and remained so even after the liberation or reoccupation of the Philippines by the United States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by General Douglas MacArthur, Commander in Chief of the United States Army, in which he declared "that all laws, regulations and processes of any of the government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the said judicial acts and proceedings have not been invalidated by said proclamation, whether the present courts of the Commonwealth, which were the same court existing prior to, and continued during, the Japanese military occupation of the Philippines, may continue

those proceedings pending in said courts at the time the Philippines were reoccupied and liberated by the United States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the Islands. We shall now proceed to consider the first question, that is, whether or not under the rules of international law the judicial acts and proceedings of the courts established in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and remained good and valid even after the liberation or reoccupation of the Philippines by the United States and Filipino forces. 1. It is a legal truism in political and international law that all acts and proceedings of the legislative, executive, and judicial departments of a de facto government are good and valid. The question to be determined is whether or not the governments established in these Islands under the names of the Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. If they were, the judicial acts and proceedings of those governments remain good and valid even after the liberation or reoccupation of the Philippines by the American and Filipino forces. There are several kinds of de facto governments. The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States. And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de facto governments. Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, civil authority, supported more or

less directly by military force. . . . One example of this sort of government is found in the case of Castine, in Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9 Howard, 614). These were cases of temporary possessions of territory by lawfull and regular governments at war with the country of which the territory so possessed was part." The powers and duties of de facto governments of this description are regulated in Section III of the Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same subject of said Section III provides "the authority of the legislative power having actually passed into the hands of the occupant, the latter shall take steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is burdened with the duty to insure public order and safety during his military occupation, he possesses all the powers of a de facto government, and he can suspended the old laws and promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, the municipal laws in force in the country, that is, those laws which enforce public order and regulate social and commercial life of the country. On the other hand, laws of a political nature or affecting political relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in the territory occupied, are considered as suspended or in abeyance during the military occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In practice, the local ordinary tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in their posts if they accept the authority of the belligerent occupant or are required to continue in their positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of the occupant. These principles and practice have the sanction of all publicists who have considered the subject, and have been asserted by the Supreme Court and applied by the President of the United States. The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts in fine,

from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones." And applying the principles for the exercise of military authority in an occupied territory, which were later embodied in the said Hague Conventions, President McKinley, in his executive order to the Secretary of War of May 19,1898, relating to the occupation of the Philippines by United States forces, said in part: "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the supervision of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p. 209.) As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de factogovernment. In that case, it was held that "the central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance that its authority did no originate in lawful acts of regular war; but it was not, on the account, less actual or less supreme. And we think that it must be classed among the governments of which these are examples. . . . In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the validity of the acts of the Confederate States, said: "The same general form of government, the same general laws for the administration of justice and protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, they are, in general, to be treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in the time of peace. No one, that we are aware of, seriously

questions the validity of judicial or legislative Acts in the insurrectionary States touching these and kindered subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution'. The same doctrine has been asserted in numerous other cases." And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was done in respect of such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution; this, because the existence of war between the United States and the Confederate States did not relieve those who are within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society nor do away with civil government or the regular administration of the laws, and because transactions in the ordinary course of civil society as organized within the enemy's territory although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered intowith actual intent to further invasion or insurrection:'" and "That judicial and legislative acts in the respective states composing the so-called Confederate States should be respected by the courts if they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution." In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by the military forces of occupation and therefore a de facto government of the second kind. It was not different from the government established by the British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says, "The government established over an enemy's territory during the military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictions which that code imposes. It is of little consequence whether such government be called a military or civil government. Its character is the same and the source of its authority the same. In either case it is a government imposed by the laws of war, and so far it concerns the inhabitants of such territory or the rest of the world, those laws alone determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive Commission was a civil and not a military government and was run by Filipinos and not by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the greater part of Prussia, he retained the existing administration under the general direction of a french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading France, authorized the local authorities to continue the exercise of their functions, apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo, pars. 218693; Hall, International Law, 7th ed., p. 505, note 2.)

The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent from any other government by the Filipino people, was, in truth and reality, a government established by the belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine Executive Commission, and the ultimate source of its authority was the same the Japanese military authority and government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the Government of the United States." Japan had no legal power to grant independence to the Philippines or transfer the sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people, before its military occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of peace or other means recognized in the law of nations. For it is a well-established doctrine in International Law, recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the population of the occupied territory to swear allegiance to the hostile power), the belligerent occupation, being essentially provisional, does not serve to transfer sovereignty over the territory controlled although the de jure government is during the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs.Page, 9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme contrived by Japan to delude the Filipino people into believing in the apparent magnanimity of the Japanese gesture of transferring or turning over the rights of government into the hands of Filipinos. It was established under the mistaken belief that by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people in her war against the United States and other allied nations. Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who, taking advantage of the withdrawal of the American forces from the Islands, and the occupation thereof by the Japanese forces of invasion, had organized an independent government under the name with the support and backing of Japan, such government would have been considered as one established by the Filipinos in insurrection or rebellion against the parent state or the Unite States. And as such, it would have been a de facto government similar to that organized by the confederate states during the war of secession and recognized as such by the by the Supreme Court of the United States in numerous cases, notably those of Thorington vs. Smith, Williams vs.Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino insurgents in the Island of Cebu during the Spanish-American war, recognized as a de facto government by the Supreme Court of the United States in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the last-named case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first appointed a provisional government, and shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the Islands and established a republic, governing the Islands until possession thereof was surrendered to the United States on February 22, 1898. And the said Supreme Court

held in that case that "such government was of the class of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force . . '." That is to say, that the government of a country in possession of belligerent forces in insurrection or rebellion against the parent state, rests upon the same principles as that of a territory occupied by the hostile army of an enemy at regular war with the legitimate power. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle in international law, the fact that a territory which has been occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the state and the individuals the evil would be scarcely less, it would be hard for example that payment of taxes made under duress should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals should be annulled by the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each an incident of the same war as in the present case, postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.) That not only judicial but also legislative acts of de facto governments, which are not of a political complexion, are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is confirmed by the Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares null and void all laws, regulations and processes of the governments established in the Philippines during the Japanese occupation, for it would not have been necessary for said proclamation to abrogate them if they were invalid ab initio. 2. The second question hinges upon the interpretation of the phrase "processes of any other government" as used in the above-quoted proclamation of General Douglas MacArthur of October 23, 1944 that is, whether it was the intention of the Commander in Chief of the American Forces to annul and void thereby all judgments

and judicial proceedings of the courts established in the Philippines during the Japanese military occupation. The phrase "processes of any other government" is broad and may refer not only to the judicial processes, but also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or other governmental agencies established in the Islands during the Japanese occupation. Taking into consideration the fact that, as above indicated, according to the well-known principles of international law all judgements and judicial proceedings, which are not of a political complexion, of the de facto governments during the Japanese military occupation were good and valid before and remained so after the occupied territory had come again into the power of the titular sovereign, it should be presumed that it was not, and could not have been, the intention of General Douglas MacArthur, in using the phrase "processes of any other government" in said proclamation, to refer to judicial processes, in violation of said principles of international law. The only reasonable construction of the said phrase is that it refers to governmental processes other than judicial processes of court proceedings, for according to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed to violate the law of nations if any other possible construction remains." It is true that the commanding general of a belligerent army of occupation, as an agent of his government, may not unlawfully suspend existing laws and promulgate new ones in the occupied territory, if and when the exigencies of the military occupation demand such action. But even assuming that, under the law of nations, the legislative power of a commander in chief of military forces who liberates or reoccupies his own territory which has been occupied by an enemy, during the military and before the restoration of the civil regime, is as broad as that of the commander in chief of the military forces of invasion and occupation (although the exigencies of military reoccupation are evidently less than those of occupation), it is to be presumed that General Douglas MacArthur, who was acting as an agent or a representative of the Government and the President of the United States, constitutional commander in chief of the United States Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court of the United States from the early period of its existence, applied by the Presidents of the United States, and later embodied in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General Douglas MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full respect and obedience to the Constitution of the Commonwealth of the Philippines," should not only reverse the international policy and practice of his own government, but also disregard in the same breath the provisions of section 3, Article II, of our Constitution, which provides 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." Moreover, from a contrary construction great inconvenience and public hardship would result, and great public interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be again settled accrued or vested rights nullified,

sentences passed on criminals set aside, and criminals might easily become immune for evidence against them may have already disappeared or be no longer available, especially now that almost all court records in the Philippines have been destroyed by fire as a consequence of the war. And it is another well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.) The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals which the belligerent occupant had the right and duty to establish in order to insure public order and safety during military occupation, would be sufficient to paralyze the social life of the country or occupied territory, for it would have to be expected that litigants would not willingly submit their litigation to courts whose judgements or decisions may afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the expectancy that they may escaped the penalty if judgments rendered against them may be afterwards set aside. That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by the President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in him by the Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals, and provided "that all case which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court final decision." This provision impliedly recognizes that the judgments and proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of General MacArthur of October 23, because the said Order does not say or refer to cases which have been duly appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942, had been disposed of by the latter before the restoration of the Commonwealth Government in 1945; while almost all, if not all, appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of First Instance during the Japanese regime. The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said that an occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be remembered that no crucial instances exist to show that if his acts should be reversed, any international wrong would be committed. What does happen is that most matters are allowed to stand by the restored government, but the matter can hardly be put further than this."

(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this quotion the respondent judge "draws the conclusion that whether the acts of the occupant should be considered valid or not, is a question that is up to the restored government to decide; that there is no rule of international law that denies to the restored government to decide; that there is no rule of international law that denies to the restored government the right of exercise its discretion on the matter, imposing upon it in its stead the obligation of recognizing and enforcing the acts of the overthrown government." There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws, regulations and processes other than judicial of the government established by the belligerent occupant. But in view of the fact that the proclamation uses the words "processes of any other government" and not "judicial processes" prisely, it is not necessary to determine whether or not General Douglas MacArthur had power to annul and set aside all judgments and proceedings of the courts during the Japanese occupation. The question to be determined is whether or not it was his intention, as representative of the President of the United States, to avoid or nullify them. If the proclamation had, expressly or by necessary implication, declared null and void the judicial processes of any other government, it would be necessary for this court to decide in the present case whether or not General Douglas MacArthur had authority to declare them null and void. But the proclamation did not so provide, undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in Chief of Military Forces of liberation or subsequent conqueror. Not only the Hague Regulations, but also the principles of international law, as they result from the usages established between civilized nations, the laws of humanity and the requirements of the public of conscience, constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which we have already quoted in discussing the first question, imposes upon the occupant the obligation to establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and action of the nationals of the hostile party," forbids him to make any declaration preventing the inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from asserting or enforcing therein their civil rights, by necessary implication, the military commander of the forces of liberation or the restored government is restrained from nullifying or setting aside the judgments rendered by said courts in their litigation during the period of occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be thwarted, for to declare them null and void would be tantamount to suspending in said courts the right and action of the nationals of the territory during the military occupation thereof by the enemy. It goes without saying that a law that enjoins a person to do something will not at the same time empower another to undo the same. Although the question whether the President or commanding

officer of the United States Army has violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature, yet, in construing and applying limitations imposed on the executive authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international law and from fundamental principles known wherever the American flag flies." In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of the forces of the United States in South Carolina after the end of the Civil War, wholly annulling a decree rendered by a court of chancery in that state in a case within its jurisdiction, was declared void, and not warranted by the acts approved respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers and duties of military officers in command of the several states then lately in rebellion. In the course of its decision the court said; "We have looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large governmental powers to the military commanders designated, within the States committed respectively to their jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language would be necessary to satisfy us that Congress intended that the power given by these acts should be so exercised. . . . It was an arbitrary stretch of authority, needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we hold that the order was void." It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared that "all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void without legal effect in areas of the Philippines free of enemy occupation and control," has not invalidated the judicial acts and proceedings, which are not a political complexion, of the courts of justice in the Philippines that were continued by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation, and that said judicial acts and proceedings were good and valid before and now good and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces. 3. The third and last question is whether or not the courts of the Commonwealth, which are the same as those existing prior to, and continued during, the Japanese military occupation by the Philippine Executive Commission and by the so-called Republic of the Philippines, have jurisdiction to continue now the proceedings in actions pending in said courts at the time the Philippine Islands were reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government was restored.

Although in theory the authority the authority of the local civil and judicial administration is suspended as a matter of course as soon as military occupation takes place, in practice the invader does not usually take the administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless absolutely prevented, to respect. As stated in the above-quoted Executive Order of President McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror is armed with the right to substitute his arbitrary will for all preexisting forms of government, legislative, executive and judicial. From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which compels the conqueror to continue local laws and institution so far as military necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the government established by the occupant of transient character. Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law over the territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be affective for the time being as in the past," and "all public officials shall remain in their present post and carry on faithfully their duties as before." When the Philippine Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5, respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of courts, with the same jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines was inaugurated, the same courts were continued with no substantial change in organization and jurisdiction thereof. If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had been continued during the Japanese military administration, the Philippine Executive Commission, and the so-called Republic of the Philippines, it stands to reason that the same courts, which had become reestablished and conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases then pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to continue said proceedings. As Taylor graphically points out in speaking of said principles "a state or other governmental entity, upon the removal of a foreign military force, resumes its old

place with its right and duties substantially unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their original shape upon removal of the external force, and subject to the same exception in case of absolute crushing of the whole fibre and content." (Taylor, International Public Law, p. 615.) The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court of First Instance of Manila presided over by him "has no authority to take cognizance of, and continue said proceedings (of this case) to final judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases commenced and the left pending therein," is "that said courts were a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had become the laws and the courts had become the institutions of Japan by adoption (U.S. vs. Reiter. 27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine Executive Commission and the Republic of the Philippines." The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the country occupied if continued by the conqueror or occupant, become the laws and the courts, by adoption, of the sovereign nation that is militarily occupying the territory. Because, as already shown, belligerent or military occupation is essentially provisional and does not serve to transfer the sovereignty over the occupied territory to the occupant. What the court said was that, if such laws and institutions are continued in use by the occupant, they become his and derive their force from him, in the sense that he may continue or set them aside. The laws and institution or courts so continued remain the laws and institutions or courts of the occupied territory. The laws and the courts of the Philippines, therefore, did not become, by being continued as required by the law of nations, laws and courts of Japan. The provision of Article 45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of the population of occupied territory to swear allegiance to the hostile power, "extends to prohibit everything which would assert or imply a change made by the invader in the legitimate sovereignty. This duty is neither to innovate in the political life of the occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the courts of justice are allowed to continue administering the territorial laws, they must be allowed to give their sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to Wheaton, however, the victor need not allow the use of that of the legitimate government. When in 1870, the Germans in France attempted to violate that rule by ordering, after the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of the "High German Powers occupying Alsace and Lorraine," upon the ground that the exercise of their powers in the name of French people and government was at least an implied recognition of the Republic, the courts refused to obey and suspended their sitting. Germany originally ordered the use of the name of "High German Powers occupying Alsace and Lorraine,"

but later offered to allow use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.) Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues until changed by the some competent legislative power. It is not change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in law. From the time the law comes into existence with the first-felt corporateness of a primitive people it must last until the final disappearance of human society. Once created, it persists until a change take place, and when changed it continues in such changed condition until the next change, and so forever. Conquest or colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until the new sovereign by legislative acts creates a change." As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon them their jurisdiction, it is evident that such laws, not being a political nature, are not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation that said laws and courts are expressly continued is not necessary in order that they may continue in force. Such proclamation, if made, is but a declaration of the intention of respecting and not repealing those laws. Therefore, even assuming that Japan had legally acquired sovereignty over these Islands, which she had afterwards transferred to the so-called Republic of the Philippines, and that the laws and the courts of these Islands had become the courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have continued in force until now, it necessarily follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, unless and until they are abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government. As a consequence, enabling laws or acts providing that proceedings pending in one court be continued by or transferred to another court, are not required by the mere change of government or sovereignty. They are necessary only in case the former courts are abolished or their jurisdiction so change that they can no longer continue taking cognizance of the cases and proceedings commenced therein, in order that the new courts or the courts having jurisdiction over said cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the Islands came into the possession of the United States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and proceeded to take cognizance of the actions pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the Islands during the Spanish regime continued taking cognizance of cases pending therein upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the present Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted

during the Japanese occupation, but a mere proclamation or order that the courts in the Island were continued. On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the civil jurisdiction of the provost courts created by the military government of occupation in the Philippines during the Spanish-American War of 1898, the same section 78 provided for the transfer of all civil actions then pending in the provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme Court having jurisdiction over them according to law. And later on, when the criminal jurisdiction of provost courts in the City of Manila was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the latter. That the present courts as the same courts which had been functioning during the Japanese regime and, therefore, can continue the proceedings in cases pending therein prior to the restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37 which we have already quoted in support of our conclusion in connection with the second question. Said Executive Order provides"(1) that the Court of Appeals created and established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order considers that the Court of Appeals abolished was the same that existed prior to, and continued after, the restoration of the Commonwealth Government; for, as we have stated in discussing the previous question, almost all, if not all, of the cases pending therein, or which had theretofore (that is, up to March 10, 1945) been duly appealed to said court, must have been cases coming from the Courts of First Instance during the so-called Republic of the Philippines. If the Court of Appeals abolished by the said Executive Order was not the same one which had been functioning during the Republic, but that which had existed up to the time of the Japanese occupation, it would have provided that all the cases which had, prior to and up to that occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be transmitted to the Supreme Court for final decision. It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the proceedings in cases, not of political complexion, pending therein at the time of the restoration of the Commonwealth Government. Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties under the laws of the Commonwealth Government, pending in said court at the time of the restoration of the said Government; and that the respondent judge of the court, having refused to act and continue him does a duty resulting from his office as presiding judge of that court, mandamus is the speedy and adequate remedy in the ordinary course of law, especially taking into consideration

the fact that the question of jurisdiction herein involved does affect not only this particular case, but many other cases now pending in all the courts of these Islands. In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So ordered. Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions DE JOYA, J., concurring: The principal question involved in this case is the validity of the proceedings held in civil case No. 3012, in the Court of First Instance of the City of Manila, under the now defunct Philippine Republic, during Japanese occupation; and the effect on said proceedings of the proclamation of General Douglas MacArthur, dated October 23, 1944. The decision of this question requires the application of principles of International Law, in connection with the municipal law in force in this country, before and during Japanese occupation. Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146 U.S., 657; 13 Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as, under the Constitution of the Commonwealth of the Philippines, it is a part of the fundamental law of the land (Article II, section 3). As International Law is an integral part of our laws, it must be ascertained and administered by this Court, whenever questions of right depending upon it are presented for our determination, sitting as an international as well as a domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838). Since International Law is a body of rules actually accepted by nations as regulating their mutual relations, the proof of the existence of a given rule is to be found in the consent of nations to abide by that rule; and this consent is evidenced chiefly by the usages and customs of nations, and to ascertain what these usages and customs are, the universal practice is to turn to the writings of publicists and to the decisions of the highest courts of the different countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).

But while usage is the older and original source of International Law, great international treaties are a later source of increasing importance, such as The Hague Conventions of 1899 and 1907. The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares that: ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to be territory where such authority is established, and in a position to assert itself. ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the occupant, the later shall take all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.) The above provisions of the Hague Convention have been adopted by the nations giving adherence to them, among which is United States of America (32 Stat. II, 1821). The commander in chief of the invading forces or military occupant may exercise governmental authority, but only when in actual possession of the enemy's territory, and this authority will be exercised upon principles of international Law (New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441; MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section 167). There can be no question that the Philippines was under Japanese military occupation, from January, 1942, up to the time of the reconquest by the armed forces of the United States of the Island of Luzon, in February, 1945. It will thus be readily seen that the civil laws of the invaded State continue in force, in so far as they do not affect the hostile occupant unfavorably. The regular judicial Tribunals of the occupied territory continue usual for the invader to take the whole administration into his own hands, partly because it is easier to preserve order through the agency of the native officials, and partly because it is easier to preserve order through the agency of the native officials, and partly because the latter are more competent to administer the laws in force within the territory and the military occupant generally keeps in their posts such of the judicial and administrative officers as are willing to serve under him, subjecting them only to supervision by the military authorities, or by superior civil authorities appointed by him.(Young vs. U.S., 39; 24 Law, ed., 992; Coleman vs. Tennessee, 97 U.S., 509; 24 Law ed., 1118; MacLeod vs. U.S., 229 U.S., 416; 33 Sup. Ct., 955; 57 Law. ed., 1260; Taylor on International Law, sections 576. 578; Wilson on International Law; pp. 331-37; Hall on International Law, 6th Edition [1909], pp. 464, 465, 475, 476; Lawrence on International Law, 7th ed., pp. 412, 413;

Davis, Elements of International Law, 3rd ed., pp. 330-332 335; Holland on International Law pp. 356, 357, 359; Westlake on International Law, 2d ed., pp. 121-23.) It is, therefore, evident that the establishment of the government under the so-called Philippine Republic, during Japanese occupation, respecting the laws in force in the country, and permitting the local courts to function and administer such laws, as proclaimed in the City of Manila, by the Commander in Chief of the Japanese Imperial Forces, on January 3, 1942, was in accordance with the rules and principles of International Law. If the military occupant is thus in duly bound to establish in the territory under military occupation governmental agencies for the preservation of peace and order and for the proper administration of justice, in accordance with the laws in force within territory it must necessarily follow that the judicial proceedings conducted before the courts established by the military occupant must be considered legal and valid, even after said government establish by the military occupant has been displaced by the legitimate government of the territory. Thus the judgments rendered by the Confederate Courts, during the American Civil War, merely settling the rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of citizens of the United States, nor in furtherance of laws passed in aid of the rebellion had been declared valid and binding (Cock vs.Oliver, 1 Woods, 437; Fed. Cas., No. 3, 164; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 118; Williams vs.Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700; Ketchum vs. Buckley [1878], 99 U.S., 188); and the judgment of a court of Georgia rendered in November, 1861, for the purchase money of slaves was held valid judgment when entered, and enforceable in 1871(Frenchvs. Tumlin, 10 Am. Law. Reg. [N.S.], 641; Fed. Case, No. 5104). Said judgments rendered by the courts of the states constituting the Confederate States of America were considered legal and valid and enforceable, even after the termination of the American Civil War, because they had been rendered by the courts of a de facto government. The Confederate States were a de facto government in the sense that its citizens were bound to render the government obedience in civil matters, and did not become responsible, as wrong-doers, for such acts of obedience (Thorington vs. Smith, 8 Wall. [U.S.], 9; 19 Law. ed., 361). In the case of Ketchum vs. Buckley ([1878], 99 U.S., 188), the Court held "It is now settled law in this court that during the late civil war the same general form of government, the same general law for the administration of justice and the protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority, or the just and legal rights of the citizens, under the Constitution, they are in general to be treated as valid and binding."

(William vs. Bruffy, 96 U.S., 176; Horn vs. Lockhart, 17 Wall., 570; Sprott vs. United States, 20 id., 459; Texas vs. White, 7 id., 700.) The government established in the Philippines, during Japanese occupation, would seem to fall under the following definition of de facto government given by the Supreme Court of the United States: But there is another description of government, called also by publicists, a government de facto, but which might, perhaps, be more aptly denominateda government of paramount force. Its distinguishing characteristics are (1) that its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrong doers, for those acts, though not warranted by the laws of the rightful government. Actual government of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. (Macleod vs. United States [1913] 229 U.S., 416.) The government established in the Philippines, under the so-called Philippine Republic, during Japanese occupation, was and should be considered as a de facto government; and that the judicial proceedings conducted before the courts which had been established in this country, during said Japanese occupation, are to be considered legal and valid and enforceable, even after the liberation of this country by the American forces, as long as the said judicial proceedings had been conducted, under the laws of the Commonwealth of the Philippines. The judicial proceedings involved in the case under consideration merely refer to the settlement of property rights, under the provisions of the Civil Code, in force in this country under the Commonwealth government, before and during Japanese occupation. Now, petitioner contends that the judicial proceedings in question are null and void, under the provisions of the proclamation issued by General Douglas MacArthur, dated October 23, 1944; as said proclamation "nullifies all the laws, regulations and processes of any other government of the Philippines than that of the Commonwealth of the Philippines." In other words, petitioner demands a literal interpretation of said proclamation issued by General Douglas MacArthur, a contention which, in our opinion, is untenable, as it would inevitably produce judicial chaos and uncertainties. When an act is susceptible of two or more constructions, one of which will maintain and the others destroy it, the courts will always adopt the former (U. S. vs. Coombs [1838], 12 Pet., 72; 9 Law. ed., 1004; Board of Supervisors of Granada County vs. Brown

[1884], 112 U.S., 261; 28 Law. ed., 704; 5 Sup. Ct. Rep., 125; In re Guarina [1913], 24 Phil., 37; Fuentes vs. Director of Prisons [1924], 46 Phil., 385). The judiciary, always alive to the dictates of national welfare, can properly incline the scales of its decisions in favor of that solution which will most effectively promote the public policy (Smith, Bell & Co., Ltd. vs. Natividad [1919], 40 Phil., 136). All laws should receive a sensible construction. General terms should be so limited in their application as not lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter (U. S. vs. Kirby, 7 Wall. [U.S.], 482; 19 Law. ed., 278; Church of Holy Trinity vs. U. S., 143 U. S. 461; 12 Sup. Ct., 511; 36 Law. ed., 226; Jacobson vs. Massachussetts, 197 U. S., 39; 25 Sup. Ct., 358; 49 Law. ed., 643; 3 Ann. Cas., 765; In re Allen, 2 Phil., 630). The duty of the court in construing a statute, which is reasonably susceptible of two constructions to adopt that which saves is constitutionality, includes the duty of avoiding a construction which raises grave and doubtful constitutional questions, if it can be avoided (U. S. vs. Delaware & Hudson Co., U.S., 366; 29 Sup. Ct., 527; 53 Law. ed., 836). According to the rules and principles of International Law, and the legal doctrines cited above, the judicial proceedings conducted before the courts of justice, established here during Japanese military occupation, merely applying the municipal law of the territory, such as the provisions of our Civil Code, which have no political or military significance, should be considered legal, valid and binding. It is to be presumed that General Douglas MacArthur is familiar with said rules and principles, as International Law is an integral part of the fundamental law of the land, in accordance with the provisions of the Constitution of the United States. And it is also to be presumed that General MacArthur his acted, in accordance with said rules and principles of International Law, which have been sanctioned by the Supreme Court of the United States, as the nullification of all judicial proceedings conducted before our courts, during Japanese occupation would lead to injustice and absurd results, and would be highly detrimental to the public interests. For the foregoing reasons, I concur in the majority opinion.

PERFECTO, J., dissenting: Law must be obeyed. To keep the bonds of society, it must not be evaded. On its supremacy depends the stability of states and nations. No government can prevail without it. The preservation of the human race itself hinges in law. Since time immemorial, man has relied on law as an essential means of attaining his purposes, his objectives, his mission in life. More than twenty-two centuries before the

Christian Era, on orders of the Assyrian King Hammurabi, the first code was engrave in black diorite with cunie form characters. Nine centuries later Emperor Hung Wu, in the cradle of the most ancient civilization, compiled the Code of the Great Ming. The laws of Manu were written in the verdic India. Moses received at Sinai the ten commandments. Draco, Lycurgus, Solon made laws in Greece. Even ruthless Genghis Khan used laws to keep discipline among the nomad hordes with which he conquered the greater part of the European and Asiastic continents. Animal and plants species must follow the mendelian heredity rules and other biological laws to survive. Thanks to them, the chalk cliffs of the infusoria show the marvel of an animal so tiny as to be imperceptible to the naked eye creating a whole mountain. Even the inorganic world has to conform the law. Planets and stars follow the laws discovered by Kepler, known as the law-maker of heavens. If, endowed with rebellious spirit, they should happen to challenge the law of universal gravity, the immediate result would be cosmic chaos. The tiny and twinkling points of light set above us on the velvet darkness of the night will cease to inspire us with dreams of more beautiful and happier worlds. Again we are called upon to do our duty. Here is a law that we must apply. Shall we shrink? Shall we circumvent it ? Can we ignore it? The laws enacted by the legislators shall be useless if courts are not ready to apply them. It is actual application to real issues which gives laws the breath of life. In the varied and confused market of human endeavor there are so many things that might induce us to forget the elementals. There are so many events, so many problem, so many preoccupations that are pushing among themselves to attract our attention, and we might miss the nearest and most familiar things, like the man who went around his house to look for a pencil perched on one of his ears. THE OCTOBER PROCLAMATION In October, 1944, the American Armed Forces of Liberation landed successfully in Leyte. When victory in islands was accomplished, after the most amazing and spectacular war operations, General of the Army Douglas MacArthur as a commander in Chief of the American Army, decided to reestablish, in behalf of the United States, the Commonwealth Government. Then he was confronted with the question as to what policy to adopt in regards to the official acts of the governments established in the Philippines by the Japanese regime. He might have thought of recognizing the validity of some of said acts, but, certainly, there were acts which he should declare null and void, whether against the policies of the American Government, whether inconsistent with military strategy and operations, whether detrimental to the interests of the American or Filipino peoples, whether for any other strong or valid reasons.

But, which to recognize, and which not? He was not in a position to gather enough information for a safe basis to distinguished and classify which acts must be nullified, and which must validated. At the same time he had to take immediate action. More pressing military matters were requiring his immediate attention. He followed the safe course: to nullify all the legislative, executive, and judicial acts and processes under the Japanese regime. After all, when the Commonwealth Government is already functioning, with proper information, he will be in a position to declare by law, through its Congress, which acts and processes must be revived and validated in the public interest. So on October 23, 1944, the Commander in Chief issued the following proclamation: GENERAL HEADQUARTERS SOUTHWEST PACIFIC AREA OFFICE OF THE COMMANDER IN CHIEF PROCLAMATION To the People of the Philippines: WHEREAS, the military forces under my command have landed in the Philippines soil as a prelude to the liberation of the entire territory of the Philippines; and WHEREAS, the seat of the Government of the Commonwealth of the Philippines has been re-established in the Philippines under President Sergio Osmea and the members of his cabinet; and WHEREAS, under enemy duress, a so-called government styled as the "Republic of the Philippines" was established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the Government of the United States, and is purporting to exercise Executive, Judicial and Legislative powers of government over the people; Now, therefore, I, Douglas MacArthur, General, United States Army, as Commander in Chief of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare: 1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the Government of the United States, the sole and the only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control;

2. The laws now existing on the statute books of the Commonwealth of the Philippines and the regulation promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free enemy occupation and control; and I do hereby announce my purpose progressively to restore and extend to the people of the Philippines the sacred right of government by constitutional process under the regularly constituted Commonwealth Government as rapidly as the several occupied areas are liberated to the military situation will otherwise permit; I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government whose seat is now firmly re-established on Philippine soil. October 23, 1944. DOUGLAS MACARTHUR General U. S. Army Commander in Chief IS THE OCTOBER PROCLAMATION LAW? In times of war the Commander in Chief of an army is vested with extraordinary inherent powers, as a natural result of the nature of the military operations aimed to achieve the purposes of his country in the war, victory being paramount among them. Said Commander in Chief may establish in the occupied or reoccupied territory, under his control, a complete system of government; he may appoint officers and employees to manage the affairs of said government; he may issue proclamations, instructions, orders, all with the full force of laws enacted by a duly constituted legislature; he may set policies that should be followed by the public administration organized by him; he may abolish the said agencies. In fact, he is the supreme ruler and law-maker of the territory under his control, with powers limited only by the receipts of the fundamental laws of his country. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the United States had military possession of all upper California. Early in 1847 the President, as constitutional commander in chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a

conqueror, and form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which has the conquest in possession. . . Cross of Harrison, 16 Howard, 164, 189.) In May, 1862, after the capture of New Orleans by the United States Army, General Butler, then in command of the army at that place, issued a general order appointing Major J. M. Bell, volunteer aide-de-camp, of the division staff, provost judge of the city, and directed that he should be obeyed and respected accordingly. The same order appointed Capt. J. H. French provost marshal of the city, the Capt. Stafford deputy provost marshal. A few days after this order the Union Bank lent to the plaintiffs the sum of $130,000, and subsequently, the loan not having been repaid, brought suit before the provost judge to recover the debt. The defense was taken that the judge had no jurisdiction over the civil cases, but judgement was given against the borrowers, and they paid the money under protest. To recover it back is the object of the present suit, and the contention of the plaintiffs is that the judgement was illegal and void, because the Provost Court had no jurisdiction of the case. The judgement of the District Court was against the plaintiffs, and this judgement was affirmed by the Supreme Court of the State. To this affirmance error is now assigned. The argument of the plaintiffs in error is that the establishment of the Provost Court, the appointment of the judge, and his action as such in the case brought by the Union Bank against them were invalid, because in violation of the Constitution of the United States, which vests the judicial power of the General government in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish, and under this constitutional provision they were entitled to immunity from liability imposed by the judgment of the Provost Court. Thus, it is claimed, a Federal question is presented, and the highest court of the State having decided against the immunity claimed, our jurisdiction is invoked. Assuming that the case is thus brought within our right to review it, the controlling question is whether the commanding general of the army which captured New Orleans and held it in May 1862, had authority after the capture of the city to establish a court and appoint a judge with power to try and adjudicate civil causes. Did the Constitution of the United States prevent the creation of the civil courts in captured districts during the war of the rebellion, and their creation by military authority? This cannot be said to be an open question. The subject came under the consideration by this court in The Grapeshot, where it was decided that when, during the late civil war, portions of the insurgent territory were occupied by the National forces, it was within the constitutional authority of the President, as commander in chief, to establish therein provisional courts for the hearing and determination of all causes arising under the laws of the States or of the United

States, and it was ruled that a court instituted by President Lincoln for the State of Louisiana, with authority to hear, try, and determine civil causes, was lawfully authorized to exercise such jurisdiction. Its establishment by the military authority was held to be no violation of the constitutional provision that "the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may form time to time ordain and establish." That clause of the Constitution has no application to the abnormal condition of conquered territory in the occupancy of the conquering, army. It refers only to courts of United States, which military courts are not. As was said in the opinion of the court, delivered by Chief Justice Chase, in The Grapeshot, "It became the duty of the National government, wherever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the National forces, to provide, as far as possible, so long as the war continued, for the security of the persons and property and for the administration of justice. The duty of the National government in this respect was no other than that which devolves upon a regular belligerent, occupying during war the territory of another belligerent. It was a military duty, to be performed by the President, as Commander in Chief, and instructed as such with the direction of the military force by which the occupation was held." Thus it has been determined that the power to establish by military authority courts for the administration of civil as well as criminal justice in portions of the insurgent States occupied by the National forces, is precisely the same as that which exists when foreign territory has been conquered and is occupied by the conquerors. What that power is has several times been considered. In Leitensdorfer & Houghton vs. Webb, may be found a notable illustration. Upon the conquest of New Mexico, in 1846, the commanding officer of the conquering army, in virtue of the power of conquest and occupancy, and with the sanction and authority of the President, ordained a provisional government for the country. The ordinance created courts, with both civil and criminal jurisdiction. It did not undertake to change the municipal laws of the territory, but it established a judicial system with a superior or appellate court, and with circuit courts, the jurisdiction of which declared to embrace, first, all criminal causes that should not otherwise provided for by law; and secondly, original and exclusive cognizance of all civil cases not cognizable before the prefects and alcades. But though these courts and this judicial system were established by the military authority of the United States, without any legislation of Congress, this court ruled that they were lawfully established. And there was no express order for their establishment emanating from the President or the Commander in Chief. The ordinance was the act of the General Kearney the commanding officer of the army occupying the conquered territory. In view of these decisions it is not to be questioned that the Constitution did not prohibit the creation by the military authority of court for the trial of civil causes during the civil war in conquered portions of the insurgent States. The establishment of such courts is but the exercise of the ordinary rights of

conquest. The plaintiffs in error, therefore, had no constitutional immunity against subjection to the judgements of such courts. They argue, however, that if this be conceded, still General Butler had no authority to establish such a court; that the President alone, as a Commander in Chief, had such authority. We do not concur in this view. General Butler was in command of the conquering and the occupying army. He was commissioned to carry on the war in Louisina. He was, therefore, invested with all the powers of making war, so far as they were denied to him by the Commander in Chief, and among these powers, as we have seen, was of establishing courts in conquered territory. It must be presumed that he acted under the orders of his superior officer, the President, and that his acts, in the prosecution of the war, were the acts of his commander in chief. (Mechanics' etc. Bank vs. Union Bank, 89 U. S. [22 Wall.], 276-298.) There is no question, therefore, that when General of the Army Douglas MacArthur issued on October Proclamation, he did it in the legitimate exercise of his powers. He did it as the official representative of the supreme authority of the United States of America. Consequently, said proclamation is legal, valid, and binding. Said proclamation has the full force of a law. In fact, of a paramount law. Having been issued in the exercise of the American sovereignty, in case of conflict, it can even supersede, not only the ordinary laws of the Commonwealth of the Philippines, but also our Constitution itself while we remain under the American flag. "PROCESS" IN THE OCTOBER PROCLAMATION In the third section of the dispositive part of the October Proclamation, it is declared that all laws, regulations and processes of any other government in the Philippines than that of the Commonwealth, are null and void. Does the word "processes" used in the proclamation include judicial processes? In its broadest sense, process is synonymous with proceedings or procedures and embraces all the steps and proceedings in a judicial cause from it commencement to its conclusion. PROCESS. In Practice. The means of compelling a defendant to appear in court after suing out the original writ, in civil, and after indictment, in criminal cases. The method taken by law to compel a compliance with the original writ or command as of the court. A writ, warrant, subpoena, or other formal writing issued by authority law; also the means of accomplishing an end, including judicial proceedings; Gollobitch vs. Rainbow, 84 la., 567; 51 N. W., 48; the means or method pointed out by a statute, or used to acquire jurisdiction of the defendants, whether by writ

or notice. Wilson vs. R. Co. (108 Mo., 588; 18 S. W., 286; 32 Am. St. Rep., 624). (3 Bouvier's Law Dictionary, p. 2731.) A. Process generally. 1. Definition. As a legal term process is a generic word of every comprehensive signification and many meanings. It is broadest sense it is equivalent to, or synonymous with, "proceedings" or "procedure," and embraces all the steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with it demands. "Process" and "writ" or "writs" are synonymous in the sense that every writ is a process, and in a narrow sense of the term "process" is limited to judicial writs in an action, or at least to writs or writings issued from or out of court, under the seal thereof, and returnable thereto; but it is not always necessary to construe the term so strictly as to limit it to a writ issued by a court in the exercise of its ordinary jurisdiction; the term is sometimes defined as a writ or other formal writing issued by authority of law or by some court, body, or official having authority to issue it; and it is frequently used to designate a means, by writ or otherwise , of acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling him to appear in, court to answer. As employed in the statutes the legal meaning of the word "process" varies according to the context, subject matter, and spirit of the statute in which it occurs. In some jurisdictions codes or statutes variously define "process" as signifying or including: A writ or summons issued in the course of judicial proceedings; all writs, warrants, summonses, and orders of courts of justice or judicial officers; or any writ, declaration, summons, order, or subpoena whereby any action, suit or proceeding shall be commenced, or which shall be issued in or upon any action, suit or proceeding. (50 C. J., PP. 441, 442.) The definition of "process" given by Lord Coke comprehends any lawful warrant, authority, or proceeding by which a man may be arrested. He says: "Process of law is two fold, namely, by the King's writ, or by proceeding and warrant, either in deed or in law, without writ." (People vs. Nevins [N. Y.] Hill, 154, 169, 170; State vs. Shaw, 50 A., 869; 73 Vt., 149.) Baron Comyn says that process, in a large acceptance, comprehends the whole proceedings after the original and before judgement; but generally it imports the writs which issue out of any court to bring the party to answer, or for doing execution, and all process out of the King's court ought to be in the name of the King. It is called "process" because it proceeds or goes upon former matter, either original or judicial. Gilmer, vs. Bird 15 Fla., 410, 421. (34 Words and Phrases, permanent edition, 1940 edition, p. 147.) In a broad sense the word "process" includes the means whereby a court compels the appearance of the defendant before it, or a compliance with it demands, and any every writ, rule order, notice, or decree, including any process

of execution that may issue in or upon any action, suit, or legal proceedings, and it is not restricted to mesne process. In a narrow or restricted sense it is means those mandates of the court intending to bring parties into court or to require them to answer proceedings there pending. (Colquitt Nat. Bank vs. Poitivint, 83 S. E., 198, 199; 15 Ga. App., 329. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) A "process" is an instrument in an epistolary from running in the name of the sovereign of a state and issued out of a court of justice, or by a judge thereof, at the commencement of an action or at any time during its progress or incident thereto, usually under seal of the court, duly attested and directed to some municipal officer or to the party to be bound by it, commanding the commission of some act at or within a specified time, or prohibiting the doing of some act. The cardinal requisites are that the instrument issue from a court of justice, or a judge thereof; that it run in the name of the sovereign of the state; that it be duly attested, but not necessarily by the judge, though usually, but not always, under seal; and that it be directed to some one commanding or prohibiting the commission of an act. Watson vs. Keystone Ironworks Co., 74 P., 272, 273; 70 Kan., 43. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) Jacobs in his Law Dictionary says: "Process" has two qualifications: First, it is largely taken for all proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; secondly, that is termed the "process" by which a man is called into any temporal court, because the beginning or principal part thereof, by which the rest is directed or taken. Strictly, it is a proceeding after the original, before the judgement. A policy of fire insurance contained the condition that if the property shall be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree or voluntary transfer or convenience, then and in every such case the policy shall be void. The term "legal process," as used in the policy, means what is known as a writ; and, as attachment or execution on the writs are usually employed to effect a change of title to property, they are or are amongst the processes contemplated by the policy. The words "legal process" mean all the proceedings in an action or proceeding. They would necessarily embrace the decree, which ordinarily includes the proceedings. Perry vs. Lorillard Fire Ins. Co., N. Y., 6 Lans., 201, 204. See, also, Tipton vs. Cordova, 1 N. M., 383, 385. (34 Words and Phrases, permanent edition, 1940 edition, p. 148.) "Process" in a large acceptation, is nearly synonymous with "proceedings," and means the entire proceedings in an action, from the beginning to the end. In a stricter sense, it is applied to the several judicial writs issued in an action. Hanna vs. Russell, 12 Minn., 80, 86 (Gil., 43, 45). (34 Words and Phrases, permanent edition, 1940, edition 149.) The term "process" as commonly applied, intends that proceeding by which a party is called into court, but it has more enlarged signification, and covers all the

proceedings in a court, from the beginning to the end of the suit; and, in this view, all proceedings which may be had to bring testimony into court, whether viva voceor in writing, may be considered the process of the court. Rich vs. Trimple, Vt., 2 Tyler, 349, 350. Id. "Process" in its broadest sense comprehends all proceedings to the accomplishment of an end, including judicial proceedings. Frequently its signification is limited to the means of bringing a party in court. In the Constitution process which at the common law would have run in the name of the king is intended. In the Code process issued from a court is meant. McKenna vs. Cooper, 101 P., 662, 663; 79 Kan., 847, quoting Hanna vs. Russel, 12 Minn., 80. (Gil., 43 ); Black Com. 279; Bou vs. Law. Dict. (34 Words and Phrases, permanent edition 1940 edition, p. 149.) "Judicial process" includes the mandate of a court to its officers, and a means whereby courts compel the appearance of parties, or compliance with its commands, and includes a summons. Ex parte Hill, 51 So., 786, 787; 165 Ala., 365. "Judicial process" comprehends all the acts of then court from the beginning of the proceeding to its end, and in a narrower sense is the means of compelling a defendant to appear in court after suing out the original writ in civil case and after the indictment in criminal cases, and in every sense is the act of the court and includes any means of acquiring jurisdiction and includes attachment, garnishment, or execution, and also a writ. Blair vs. Maxbass Security Bank of Maxbass, 176 N. W., 98, 199; 44 N. D. 12 (23 Words and Phrases, permanent edition 1940 edition, p. 328.) There is no question that the word process, as used in the October Proclamation, includes all judicial processes or proceedings. The intention of the author of the proclamation of including judicial processes appears clearly in the preamble of the document. The second "Whereas," states that so-called government styled as the "Republic of the Philippines," based upon neither the free expression of the people's will nor the sanction of the Government of the United States, and is purporting to the exercise Executive, Judicial, and Legislative powers of government over the people." It is evident from the above-mentioned words that it was the purpose of General MacArthur to declare null and void all acts of government under the Japanese regime, and he used, in section 3 of he dispositive part, the word laws, as pertaining to the legislative branch, the word regulations, as pertaining to the executive branch, and lastly, the word processes, as pertaining to the judicial branch of the government which functioned under the Japanese regime.

It is reasonable to assume that he might include in the word "process." besides those judicial character, those of executive or administrative character. At any rate, judicial processes cannot be excluded. THE WORDS OF PROCLAMATION EXPRESS UNMISTAKABLY THE INTENTION OF THE AUTHOR The October Proclamation is written in such a way that it is impossible to make a mistake as to the intention of its author. Oliver Wendell Holmes, perhaps the wisest man who had ever sat in the Supreme Court of the United States, the following: When the words in their literal sense have a plain meaning, courts must be very cautious in allowing their imagination to give them a different one. Guild vs. Walter, 182 Mass., 225, 226 (1902) Upon questions of construction when arbitrary rule is involved, it is always more important to consider the words and the circumstances than even strong analogies decisions. The successive neglect of a series of small distinctions, in the effort to follow precedent, is very liable to end in perverting instruments from their plain meaning. In no other branch of the law (trusts) is so much discretion required in dealing with authority. . . . There is a strong presumption in favor of giving them words their natural meaning, and against reading them as if they said something else, which they are not fitted to express. (Merrill vs. Preston, 135 Mass., 451, 455 (1883). When the words of an instrument are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framer, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what needs no interpretation. Very strong expression have been used by the courts to emphasize the principle that they are to derive their knowledge of the legislative intention from the words or language of the statute itself which the legislature has used to express it. The language of a statute is its most natural guide. We are not liberty to imagine an intent and bind the letter to the intent. The Supreme Court of the United States said: "The primary and general rule of statutory construction is that the intent of the law-maker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional and only arise where there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No

mere ommission, no mere failure to provide for contingencies, which it may seem wise should have specifically provided for will justify any judicial addition to the language of the statute." (United States vs. Goldenberg, 168 U. S., 95, 102, 103; 18 S. C. Rep., 3; 42 Law. ed., 394.) That the Government of the Commonwealth of the Philippines shall be the sole and only government in our country; that our laws are in full force and effect and legally binding; that "all laws, regulations and processes of any other government are null and void and without legal effect", are provisions clearly, distinctly, unmistakably expressed in the October Proclamation, as to which there is no possibility of error, and there is absolutely no reason in trying to find different meanings of the plain words employed in the document. As we have already seen, the annulled processes are precisely judicial processes, procedures and proceedings, including the one which is under our consideration. THE OCTOBER PROCLAMATION ESTABLISHES A CLEAR POLICY Although, as we have already stated, there is no possible mistakes as to the meaning of the words employed in the October Proclamation, and the text of the document expresses, in clear-cut sentences, the true purposes of its author, it might not be amiss to state here what was the policy intended to be established by said proclamation. It is a matter of judicial knowledge that in the global war just ended on September 2, 1945, by the signatures on the document of unconditional surrender affixed by representatives of the Japanese government, the belligerents on both sides resorted to what may call war weapons of psychological character. So Japan, since its military forces occupied Manila, had waged an intensive campaign propaganda, intended to destroy the faith of the Filipino people in America, to wipe out all manifestations of American or occidental civilization, to create interest in all things Japanese, which the imperial officers tried to present as the acme of oriental culture, and to arouse racial prejudice among orientals and occidentals, to induce the Filipinos to rally to the cause of Japan, which she tried to make us believe is the cause of the inhabitants of all East Asia. It is, then, natural that General MacArthur should take counter-measures to neutralize or annul completely all vestiges of Japanese influence, specially those which might jeopardize in any way his military operations and his means of achieving the main objective of the campaign of the liberation, that is, to restore in our country constitutional processes and the high ideals constitute the very essence of democracy. It was necessary to free, not only our territory, but also our spiritual patrimony. It was necessary, not only to restore to us the opportunity of enjoying the physical treasures which a beneficent Providence accumulated on this bountiful land, the true paradise in the western Pacific, but to restore the full play of our ideology, that wonderful admixture

of sensible principles of human conduct, bequeathed to us by our Malayan ancestors, the moral principles of the Christianity assimilated by our people from teachers of Spain, and the common-sense rules of the American democratic way of life. It was necessary to free that ideology from any Japanese impurity. Undoubtedly, the author of the proclamation thought that the laws, regulations, and processes of all the branches of the governments established under the Japanese regime, if allowed to continue and to have effect, might be a means of keeping and spreading in our country the Japanese influence, with the same deadly effects as the mines planted by the retreating enemy. The government offices and agencies which functioned during the Japanese occupation represented a sovereignty and ideology antagonistic to the sovereignty and ideology which MacArthur's forces sought to restore in our country. Under chapter I of the Japanese Constitution, it is declared that Japan shall reigned and governed by a line Emperors unbroken for ages eternal (Article 1); that the Emperor is sacred and inviolable (Article 3); that he is the head of the Empire, combining in himself the rights of the sovereignty (Article 4); that he exercises the legislative power (Article 5); that he gives sanction to laws, and orders to be promulgated and executed (Article 6);that he has the supreme command of the Army and Navy (Article 11); that he declares war, makes peace, and concludes treaties (Article 13). There is no reason for allowing to remain any vestige of Japanese ideology, the ideology of a people which as confessed in a book we have at our desk, written by a Japanese, insists in doing many things precisely in a way opposite to that followed by the rest of the world. It is the ideology of a people which insists in adopting the policy of self-delusion; that believes that their Emperor is a direct descendant of gods and he himself is a god, and that the typhoon which occured on August 14, 1281, which destroyed the fleet with which Kublai Khan tried to invade Japan was the divine wind of Ise; that defies the heinous crime of the ronin, the 47 assassins who, in order to avenge the death of their master Asano Naganori, on February 3, 1703, entered stealthily into the house of Yoshinaka Kiro and killed him treacherously. It is an ideology which dignifies harakiri or sepukku, the most bloody and repugnant from suicide, and on September 13, 1912, on the occasion of the funeral of Emperor Meiji, induced General Maresuke Nogi and his wife to practice the abhorrent "junshi", and example of which is offered to us in the following words of a historian: When the Emperor's brother Yamato Hiko, died in 2 B. C., we are told that, following the occasion, his attendants were assembled to from the hitobashira (pillar-men) to gird the grave. They were buried alive in circle up to the neck around the thomb and "for several days they died not, but wept and wailed

day night. At last they died not, but wept and wailed day night. At last they did not rotted. Dogs and cows gathered and ate them." (Gowen, an Outline of History of Japan, p. 50.) The practice shows that the Japanese are the spiritual descendants of the Sumerians, the ferocious inhabitants of Babylonia who, 3500 years B. C., appeared in history as the first human beings to honor their patesis by killing and entombing with him his window, his ministers, and notable men and women of his kingdom, selected by the priests to partake of such abominable honor. (Broduer, The Pageant of Civilization, pp. 62-66.) General MacArthur sought to annul completely the officials acts of the governments under the Japanese occupation, because they were done at the shadow of the Japanese dictatorship, the same which destroyed the independence of Korea, the "Empire of Morning Frehsness"; they violated the territorial integrity of China, invaded Manchuria, and initiated therein the deceitful system of puppet governments, by designating irresponsible Pu Yi as Emperor of Manchukuo; they violated the trusteeship granted by the Treaty of Versailles by usurping tha mandated islands in the Pacific; they initiated that they call China Incident, without war declaration, and, therefore, in complete disregard of an elemental international duty; they attacked Pearl Harbor treacherously, and committed a long series of the flagrant violations of international law that have logically bestowed on Japan the title of the bandit nation in the social world. The conduct of the Japanese during the occupation shows a shocking an anchronism of a modern world power which seems to be re-incarnation of one whose primitive social types of pre-history, whose proper place must be found in an archeological collection. It represents a backward jump in the evolution of ethical and juridical concepts, a reversion that, more than a simple pathological state, represents a characteristics and well defined case of sociological teratology. Since they entered the threshold of our capital, the Japanese had announced that for every one of them killed they would kill ten prominent Filipinos. They promised to respect our rights by submitting us to the wholesale and indiscriminate slapping, tortures, and atrocious massacres. Driving nails in the cranium, extraction of teeth and eyes, burnings of organs, hangings, diabolical zonings, looting of properties, establishments of redlight districts, machine gunning of women and children, interment of alive persons, they are just mere preludes of the promised paradised that they called "Greater East Asia Co-Prosperity Sphere". They promised religious liberty by compelling all protestant sects to unite, against the religious scruples and convictions of their members, in one group, and by profaning convents, seminaries, churches, and other cult centers of the Catholics, utilizing them as military barracks, munitions dumps, artillery base, deposits of bombs and gasoline, torture chambers and zone, and by compelling the government officials and employees to face and to bow in adoration before that caricature of divinity in the imperial palace of Tokyo.

The Japanese offered themselves to be our cultural mentors by depriving us of the use of our schools and colleges, by destroying our books and other means of culture, by falsifying the contents of school texts, by eliminating free press, the radio, all elemental principles of civilized conduct, by establishing classes of rudimentary Japanese so as to reduce the Filipinos to the mental level of the rude Japanese guards, and by disseminating all kinds of historical, political, and cultural falsehoods. Invoking our geographical propinquity and race affinity, they had the insolence of calling us their brothers, without the prejuce of placing of us in the category of slaves, treating the most prominent Filipinos in a much lower social and political category than that of the most ignorant and brutal subject of the Emperor. The civil liberties of the citizens were annulled. Witnesses and litigants were slapped and tortured during investigations. In the prosecuting attorney's offices, no one was safe. When the Japanese arrested a person, the lawyer who dared to intercede was also placed under arrest. Even courts were not free from their dispotic members. There were judges who had to trample laws and shock their conscience in order not to disgust a Nipponese. The most noble of all professions, so much so that the universities of the world could not conceive of higher honor that may be conferred than that of Doctor of Laws, became the most despised. It was dangerous to practice the profession by which faith in the effectiveness of law is maintained; citizens feel confident in the protection of their liberties, honor, and dignity; the weak may face the powerful; the lowest citizen is not afraid of the highest official; civil equality becomes reality; justice is admnistered with more efficiency; and democracy becomes the best system of government and the best guaranty for the welfare and happiness of the individual human being. In fact, the profession of law was annulled, and the best lawyers for the unfortunate prisoners in Fort Santiago and other centers of torture were the military police, concubines, procurers, and spies, the providers of war materials and shameful pleasures, and the accomplices in fraudulent transactions, which were the specialty of many naval and military Japanese officers. The courts and Filipino government officials were completely helpless in the question of protecting the constitutional liberties and fundamental rights of the citizens who happen to be unfortunate enough to fall under the dragnet of the hated kempei. Even the highest government officials were not safe from arrest and imprisonment in the dreaded military dungeons, where torture or horrible death were always awaiting the defenseless victim of the Japanese brutality. May any one be surprised if General MacArthur decided to annul all the judicial processes? The evident policy of the author of the October Proclamation can be seen if we take into consideration the following provisions of the Japanese Constitution:

ART. 57. The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor. ART. 61. No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the executive authority .. shall be taken cognizance of by a Court of Law. INTERNATIONAL LAW Nobody dared challenge the validity of the October Proclamation. Nobody dared challenge the authority of the military Commander in Chief who issued it. Certainly not because of the awe aroused by the looming figure of General of the Army Douglas MacArthur, the Allied Supreme Commander, the military hero, the greatest American general, the Liberator of the Philippines, the conqueror of Japan, the gallant soldier under whose authority the Emperor of the Japan, who is supposed to rule supreme for ages as a descendant of gods, is receiving orders with the humility of a prisoner of war. No challenge has been hurled against the proclamation or the authority of the author to issue it, because everybody acknowledges the full legality of its issuance. But because the proclamation will affect the interest and the rights of a group of individuals, and to protect the same, a way is being sought to neutralize the effect of the proclamation. The way found is to invoke international law. The big and resounding word is considered as a shibboleth powerful enough to shield the affected persons from the annulling impact. Even then, international law is not invoked to challenge the legality or authority of the proclamation, but only to construe it in a convenient way so that judicial processes during the Japanese occupation, through an exceptional effort of the imagination, might to segregated from the processes mentioned in the proclamation. An author said that the law of nations, the "jus gentiun", is not a fixed nor immutable science. On the country, it is developing incessantly, it is perpetually changing in forms. In each turn it advances or recedes, according to the vicissitudes of history, and following the monotonous rythm of the ebb and rise of the tide of the sea. Le driot des gens, en effet, n'est point une science fixe est immuable: bein au contraire, il se developpe sans cesse, il change eternellement de formes; tour il avance et il recule, selon less vicissitudes de histoire et suivan un rhythm monotone qui est comme le flux et le reflux d'un mer. (M. Revon, De l'existence du driot international sous la republique romain.)

Another author has this to say: International law, if it is or can be a science at all, or can be, at most a regulative science, dealing with the conduct of States, that is, human beings in a certain capacity; and its principles and prescriptions are not, like those of science proper, final and unchanging. The substance of science proper is already made for man; the substance of international is actually made by man, and different ages make differently." (Coleman Philippson, The International Law and Custom of Ancient Greece of Rome, Vol. I, p. 50.) "Law must be stable, and yet it cannot stand still." (Pound, Interpretations of Legal History., p. 1. ) Justice Cardozo adds: "Here is the great antimony confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path compromise." (The Growth of Law p. 2.) Law is just one of the manifestations of human life, and "Life has relations not capable of division into inflexible compartments. The moulds expand and shrink," (Glanzer vs. Shepard, 233 N.Y., 236, 241.) The characteristic plasticity of law is very noticeable, much more than in any other department, in international law. In a certain matters it is clear we have made substantial progress, but in other points, he (M. Revon) maintains, we have retrograded; for example, in the middle ages the oath was not always respected as faithfully as in ancient Rome; and nearer our own times, in the seventeenth century, Grotius proclaims the unquestioned right of the belligerents to massacre the women and the children of the enemy; and in our more modern age the due declaration of war which Roman always conformed to has not been invariably observed. (Coleman Philippson, The International Law and Custom of Ancient Greece and Rome, Vol. I, p. 209.) Now let us see if any principle of international law may effect the enforcement of the October Proclamation. In this study we should be cautioned not to allow ourselves to be deluded by generalities and vagueness which are likely to lead us easily to error, in view of the absence of codification and statutory provisions. Our Constitution provides: 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. (Sec. 3, Art. II.) There being no codified principles of international law, or enactments of its rules, we cannot rely on merely legal precepts.

With the exception of international conventions and treaties and, just recently, the Charter of the United Nations, adopted in San Francisco Conference on June 26, 1945, we have to rely on unsystemized judicial pronouncements and reasonings and on theories, theses, and propositions that we may find in the works of authors and publicists. Due to that characteristic pliability and imprecision of international law, the drafters of our Constitution had to content themselves with "generally accepted principles." We must insists, therefore, that the principles should be specific and unmistakably defined and that there is definite and conclusive evidence to the effect that they generally accepted among the civilized nations of the world and that they belong to the current era and no other epochs of history. The temptation of assuming the role of a legislator is greater in international law than in any other department of law, since there are no parliaments, congresses, legislative assemblies which can enact laws and specific statutes on the subject. It must be our concern to avoid falling in so a great temptation, as its, dangers are incalculable. It would be like building castles in the thin air, or trying to find an exit in the thick dark forest where we are irretrievably lost. We must also be very careful in our logic. In so vast a field as international law, the fanciful wandering of the imagination often impair the course of dialistics. THE OCTOBER PROCLAMATION AND INTERNATIONAL LAW Is there any principle of international law that may effect the October Proclamation? We tried in vain to find out in the majority opinion anything as to the existence of any principle of international law under which the authority of General MacArthur to issue the proclamation can effectively be challenged. No principle of international law has been, or could be invoked as a basis for denying the author of the document legal authority to issue the same or any part thereof. We awaited in vain for any one to dare deny General MacArthur the authority, under international law, to declare null and void and without effect, not only the laws and regulations of the governments under the Japanese regime, but all the processes of said governments, including judicial processes. If General MacArthur, as commander in Chief of the American Armed Forces of Liberation, had authority, full and legal, to issue the proclamation, the inescapable result will be the complete viodance and nullity of all judicial processes, procedures, and proceedings of all courts under the Japanese regime. But those who are sponsoring the cause of said judicial processes try to achieve their aim, not by direct means, but by following a tortuous side-road.

They accept and recognize the full authority of the author of the proclamation to issue it and all its parts, but they maintain that General MacArthur did not and could not have in mind the idea of nullifying the judicial processes during the Japanese occupation, because that will be in violation of the principles of international law. If we follow the reasoning of the majority opinion we will have to reach the conlusion that the world "processes" does not appear at all in the October Proclamation. It is stated more than once, and reiterated with dogmatic emphasis, that under the principles of international law the judicial processes under an army occupation cannot be invalidated. But we waited in vain for the specific principle of international law, only one of those alluded to, to be pointed out to us. If the law exist, it can be pointed out. If the principle exists, it can stated specifically. The word is being used very often in plural, principles, but we need only one to be convinced. The imagined principles are so shrouded in a thick maze of strained analogies and reasoning, that we confess our inability even to have a fleeting glimpse at them through their thick and invulnerable wrappers. At every turn international law, the blatant words, are haunting us with the deafening bray of a trumpet, but after the transient sound has fled away, absorbed by the resiliency of the vast atmosphere, the announced principles, which are the very soul of international law, would disappear too with the lighting speed of a vanishing dream. WEAKNESS OF THE MAJORITY POSITION In the majority opinion three questions are propounded: first, whether judicial acts and proceedings during the Japanese occupation are valid even after liberation; second whether the October Proclamation had invalidated all judgement and judicial proceedings under the Japanese regime; and third, whether the present courts of the Commonwealth may continue the judicial proceedings pending at the time of liberation. As regards the first question, it is stated that it is a legal tourism in political and international law that all acts of ade facto government are good and valid, that the governments established during the Japanese occupation. that is, the Philippine Executive Commission and the Republic of the Philippines, were de facto governments, and that it necessarily follows that the judicial acts and proceedings of the courts of those governments, "which are not of a political complexion," were good and valid, and by virtue of the principle of postliminium, remain good and valid after the liberation. In the above reasoning we will see right away how the alleged legal truism in political and international law, stated as a premise in a sweeping way, as an absolute rule, is

immediately qualified by the exception as to judicial acts and proceedings which are of a "political complexion." So it is the majority itself which destroys the validity of what it maintains as a legal truism in political and international law, by stating from the beginning of the absolute proposition that all acts and proceedings of the legislative, executive, and judicial departments of a de facto governments are good and valid. It is be noted that no authority, absolutely no authority, has been cited to support the absolute and sweeping character of the majority proposition as stated in their opinion. No authority could be cited, because the majority itself loses faith in the validity of such absolute and sweeping proposition, by establishing an unexplained exception as regards the judicial acts and proceedings of a "political complexion." Besides, it is useless to try to find in the arguments of the majority anything that may challenge the power, the authority of a de jure government to annul the official acts of a de facto government, or the legal and indisputable authority of the restored legitimate government to refuse to recognize the official acts, legislative, executive and judicial, of the usurping government, once the same is ousted. As to the second question, the majority argues that the judicial proceedings and judgments of the de factogovernments under the Japanese regime being good and valid, "it should be presumed that it was not, and could not have been, the intention of General Douglas MacArthur to refer to judicial processes, when he used the last word in the October Proclamation, and that it only refers to government processes other than judicial processes or court proceedings." The weakness and absolute ineffectiveness of the argument are self-evident. It is maintained that when General MacArthur declared the processes of the governments under the Japanese regime null and void, he could not refer to judicial processes, because the same are valid and remained so under the legal truism announced by the majority to the effect that, under political and international law, all official acts of a de facto government, legislative, executive or judicial, are valid. But we have seen already how the majority excepted from said legal truism the judicial processes of "political complexion." And now it is stated that in annulling the processes of the governments under Japanese occupation, General MacArthur referred to "processes other than judicial processes." That is, the legislative and executive processes.

But, did not the majority maintain that all acts and proceedings of legislative and executive departments of a de facto governments are good and valid? Did it not maintain that they are so as a "legal truism in political and international law?" Now if the reasoning of the majority to the effect that General MacArthur could not refer to judicial processes because they are good and valid in accordance with international law, why should the same reasoning not apply to legislative and executive processes? Why does the majority maintain that, notwithstanding the fact that, according that said legal truism, legislative and executive official acts of de facto governments are good and valid, General MacArthur referred to the latter in his annulling proclamation, but not to judicial processes? If the argument is good so as to exclude judicial processes from the effect of the October Proclamation, we can see no logic in considering it bad with respect to legislative and executive processes. If the argument is bad with respect to legislative and executive processes, there is no logic in holding that it is not good with respect to judicial processes. Therefore, if the argument of the majority opinion is good, the inevitable conclusion is that General MacArthur did not declare null and void any processes, at all, whether legislative processes, executive processes, or judicial processes, and that the word "processes" used by him in the October Proclamation is a mere surplusage or an ornamental literary appendix. The absurdity of the conclusion unmasks the utter futility of the position of the majority, which is but a mere legal pretense that cannot stand the least analysis or the test of logic. A great legal luminary admonished that we must have courage to unmasks pretense if we are to reach a peace that will abide beyond the fleeting hour. It is admitted that the commanding general of a belligerent army of occupation as an agent of his government, "may not unlawfully suspend existing laws and promulgate new ones in the occupied territory if and when exigencies of the military occupation demand such action," but it is doubted whether the commanding general of the army of the restored legitimate government can exercise the same broad legislative powers. We beg to disagree with a theory so unreasonable and subversive. We cannot accept that the commanding general of an army of occupation, of a rebellious army, of an invading army, or of a usurping army, should enjoy greater legal authority during the illegal, and in the case of the Japanese, iniquitous and bestial occupation, than the official representative of the legitimate government, once restored

in the territory wrested from the brutal invaders and aggressors. We cannot agree with such legal travesty. Broad and unlimited powers are granted and recognized in the commanding general of an army of invasion, but the shadow of the vanishing alleged principle of international law is being brandished to gag, manacle, and make completely powerless the commander of an army of liberation to wipe out the official acts of the government for usurpation, although said acts might impair the military operation or neutralize the public policies of the restored legitimate government. We are not unmindful of the interest of the persons who might be adversely affected by the annulment of the judicial processes of the governments under the Japanese regime, but we cannot help smiling when we hear that chaos will reign or that the world will sink. It is possible that some criminals will be let loose unpunished, but nobody has ever been alarmed that the President, in the exercise of his constitutional powers of pardon and amnesty, had in the past released many criminals from imprisonment. And let us not forget that due to human limitations, in all countries, under all governments, in peace or in war, there were, there are, and there will always be unpunished criminals, and that situation never caused despair to any one. We can conceive of inconveniences and hardships, but they are necessary contributions to great and noble purposes. Untold sacrifices were always offered to attain high ideals and in behalf of worthy causes. We cannot refrain from feeling a paternal emotion for those who are trembling with all sincerity because of the belief that the avoidance of judicial proceedings of the governments under the Japanese regime "would paralyze the social life of the country." To allay such fear we must remind them that the country that produced many great hereos and martyrs; that contributed some of highest morals figures that humanity has ever produced in all history; which inhabited by a race which was able to traverse in immemorial times the vast expanses of the Indian Ocean and the Pacific with inadequate means of navigation, and to inhabit in many islands so distantly located, from Madagascar to the eastern Pacific; which made possible the wonderful resistance of Bataan and Corregidor, can not have a social life so frail as to be easily paralyzed by the annulment of some judicial proceedings. The Japanese vandalisms during the last three years of nightmares and bestial oppression, during the long period of our national slavery, and the wholesale massacres and destructions in Manila and many other cities and municipalities and populated areas, were not able to paralyze the social life of our people. Let us not loss faith so easily in the inherent vitality of the social life of the people and country of Rizal and Mabini. It is insinuated that because of the thought that the representative of the restored sovereign power may set aside all judicial processes of the army of occupation, in the case to courts of a future invasions, litigants will not summit their cases to courts whose judgement may afterwards be annulled, and criminals would not be deterred from

committing offenses in the expectancy that they may escape penalty upon liberation of the country. We hope that Providence will never allow the Philippines to fall again under the arms of an invading army, but if such misfortune will happen, let the October Proclamation serve as a notice to the ruthless invaders that the official acts of the government of occupation will not merit any recognition from the legitimate government, especially if they should not conduct themselves, as exemplified by the Japanese, in accordance with the rules of action of a civilized state. One conclusive evidence of the untenableness of the majority position is the fact that it had to resort to Executive Order No. 37, issued on March 10, 1945, providing "that all cases that have heretofore been appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision." The far-fetched theory is advanced that this provision impliedly recognizes the court processes during the Japanese military occupation, on the false assumption that it refers to the Court of Appeals existing during the Japanese regime. It is self-evident that the Executive Order could have referred only to the Commonwealth Court of Appeals, which is the one declared abolished in said order. Certainly no one will entertain the absurd idea that the President of the Philippines could have thought of abolishing the Court of Appeals under the government during the Japanese occupation. Said Court of Appeals disappeared with the ouster of the Japanese military administration from which it derived its existence and powers. The Court of Appeals existing on March 10, 1945, at the time of the issuance of Executive Order No. 37, was the Commonwealth Court of Appeals and it was the only one that could be abolished. Without discussing the correctness of principle stated the majority opinion quotes from Wheaton the following: "Moreover when it is said that occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must be remembered that on crucial instances exist to show that if his acts should be reversed, any international wrong would be committed. What does happen is that most matters are allowed to stand by the stored government, but the matter can hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p. 245) Then it says that there is no doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the laws, regulations and processes other than the judicial of the government established by the belligerent occupant. It is evident that the statement just quoted is a complete diversion from the principle stated in the in an unmistakable way by Wheaton, who says in definite terms that "it must be remembered that no crucial instances exist to show that if his acts (the occupant's) should be reversed, any international wrong would be committed." It can be clearly seen that Wheaton does not make any distinction or point out any exception.

But in the majority opinion the principle is qualified, without stating any reason therefore, by limiting the right of the restored government to annul "most of the acts of the occupier" and "processes other than judicial." The statement made by the respondent judge after quoting the above-mentioned principle, as stated by Wheaton, to the effect that whether the acts of military occupant should be considered valid or not, is a question that is up to the restored government to decide, and that there is no rule of international law that denies to the restored government the right to exercise its discretion on the matter, is quoted without discussion in the majority opinion. As the statement is not disputed, wee are entitled to presume that it is concurred in and, therefore, the qualifications made in the statement in the majority opinion seem to completely groundless. THE DUTIES IMPOSED ON OCCUPANT ARMY ARE NOT LIMITATIONS TO THE RIGHTS OF THE LEGITIMATE GOVERNMENT The majority opinion is accumulating authorities to show the many duties imposed by international law on the military occupant of an invaded country. And from said duties it is deduced that the legitimate government, once restored in his own territory, is bound to respect all the official acts of the government established by the usurping army, except judicial processes political complexion. The reasoning calls for immediate opposition. It is absolutely contrary to all principles of logic. Between the duties imposed in the military occupant and the legal prerogatives of the legitimate government there are no logical relationship or connection that might bind the ones with the others. The military occupants is duty bound to protect the civil rights of the inhabitants, but why should the legitimate government necessarily validate the measures adopted by the said occupant in the performance of this duty, if the legitimate government believes his duty to annul them for weighty reasons? The military occupant is duty bound to establish courts of justice. Why should the legitimate government validate the acts of said courts, if it is convinced that said courts were absolutely powerless, as was the case during the Japanese occupation, to stop the horrible abuses of the military police, to give relief to the victims of zoning and Fort Santiago tortures, to protect the fundamental human rights of the Filipinos life, property, and personal freedom? The majority opinion recognizes in the military occupant the power to annul the official acts of the ousted and supplanted legitimate government, a privilege which is inversely

denied to the last. This preference and predilection in favor of the military occupant, that is in favor of the invader and usurper, and against the legitimate government, is simply disconcerting, if we have to say the least. PRESUMPTIONS AND SUPPOSITIONS AGAINST TRUTH AND FACTS The invading military occupant is duty bound to establish and maintain courts of justice in the invaded territory, for the protection of the inhabitants thereof. It is presumed that the restored legitimate government will respect the acts of said courts of the army of occupation. Therefore, it is a principle of international law that said acts are valid and should be respected by the legitimate government. It is presumed that General MacArthur is acquainted with such principle, discovered or revealed through presumptive operations, and it is presumed that he had not the intention of declaring null and void the judicial processes of the government during the Japanese regime. Therefore, his October Proclamation, declaring null and void and without effect "all processes" of said governments, in fact, did not annul the Japanese regime judicial processes. So run the logic of the majority. They don't mind the that General MacArthur speaks in the October Proclamation as follows: NOW, THEREFORE, I, Douglas MacArthur, General, United States Army, as Commander-in-Chief of the military forces committed to the liberation of the Philippines, do hereby proclaim and declare: xxx xxx xxx

3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control. (emphasis supplied.) General MacArthur says categorically "all processes", but the majority insists on reading differently, that, is: "NOT ALL processes." The majority presume, suppose, against the unequivocal meaning of simple and well known words, that when General MacArthur said "all processes", in fact, he said "not all processes", because it is necessary, by presumption, by supposition, to exclude judicial processes. If where General MacArthur says "all", the majority shall insist on reading "not all", it is impossible to foresee the consequences of such so stubborn attitude, but it is possible to understand how they reached the unacceptable possible conclusion which we cannot be avoid opposing and exposing. Are we to adopt and follow the policy of deciding cases submitted to our consideration, by presumption and suppositions putting aside truths and facts? Are we to place in the

documents presented to us, such as the October Proclamation, different words than what are written therein? Are we to read "not all", where it is written "all"? We are afraid to such procedure is not precisely the most appropriate to keep public confidence in the effectiveness of the administration of justice. That is why we must insists that in the October Proclamation should be read what General MacArthur has written in it, that is, that, besides laws and regulations, he declared and proclaimed null and void "ALL PROCESSES", including naturally judicial processes, of the governments under the Japanese regime. THE COMMONWEALTH COURTS HAVE NO JURISDICTION TO CONTINUE JAPANESE REGIME JUDICIAL PROCESSES Now we come to the third and last question propounded in the majority opinion. The jurisdiction of the Commonwealth tribunals is defined, prescribed, and apportioned by legislative act. It is provided so in our Constitution. (Section 2, Article VIII.) The Commonwealth courts of justice are continuations of the courts established before the inauguration of the Commonwealth and before the Constitution took effect on November 15, 1935. And their jurisdiction is the same as provided by existing laws at the time of inauguration of the Commonwealth Government. Act No. 136 of the Philippine Commission, known as the Organic Act of the courts of justice of the Philippines, is the one that defines the jurisdiction of justice of the peace and municipal courts, Courts of First Instance, and the Supreme Court. It is not necessary to mention here the jurisdiction of the Court of Appeals, because the same has been abolished by Executive Order No. 37. No provision may be found in Act. No. 136, nor in any other law of the Philippines, conferring on the Commonwealth tribunals jurisdiction to continue the judicial processes or proceedings of tribunals belonging to other governments, such as the governments established during the Japanese occupation. The jurisdiction of our justice of the peace and municipal courts is provided in section 68, chapter V, of Act No. 136. The original and appellate jurisdiction of the Courts of First Instance is provided in the sections 56, 57, Chapter IV, of Act No. 136. The original and appellate jurisdiction of the Supreme Court is provided in 17 and 18, Chapter II, of the same Act. The provisions of the above-cited do not authorize, even implicitly, any of the decisions and judgements of tribunals of the governments, nor to continue the processes or proceedings of said tribunals.

NECESSITY OF ENABLING ACT UNDER THE LEGAL DOCTRINE PREVAILING IN THE PHILIPPINES AND IN THE UNITED STATES Taking aside the question as to whether the judicial processes of the government established during the Japanese occupation should be considered valid or not, in order that said processes could be continued and the Commonwealth tribunals could exercise proper jurisdiction to continue them, under the well- established legal doctrine, prevailing not only in the Philippines, but also in the proper enabling law. Almost a half a century ago, in the instructions given by President McKinley on April 7, 1900, for the guidance of the Philippine Commission, it was stated that, in all the forms of the govenment and administrative provisions which they were authorized to prescribed, the Commission should bear in mind that the government which they were establishing was designed not for the satisfaction of the Americans or for the expression of their of their theoretical views, but for the happiness, peace and prosperity of the people of the Philippines, and the measures adopted should be made to conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government. Notwithstanding the policy so outlined, it was not enough for the Philippine Commission to create and establish the courts of justice provided in Act No. 136, in order that said tribunals could take cognizance and continue the judicial proceedings of the tribunals existing in the Philippines at the time the American occupation. It needed specific enabling provisions in order that the new tribunals might continue the processes pending in the tribunals established by the Spaniards, and which continued to function until they were substituted by the courts created by the Philippine Commission. So it was done in regards to the transfer of the cases pending before the Spanish Audiencia to the newly created Supreme Court, in sections 38 and 39 of Act No. 136 quoted as follows: SEC. 38. Disposition of causes, actions, proceedings, appeals, records, papers, and so forth, pending in the existing Supreme Court and in the "Contencioso Administravo." All records, books, papers, causes, actions, proceedings, and appeals logged, deposited, or pending in the existing Audiencia or Supreme Court, or pending by appeal before the Spanish tribunal called "Contencioso Administravo," are transferred to the Supreme Court above provided for which, has the same power and jurisdiction over them as if they had been in the first instance lodged, filed, or pending therein, or, in case of appeal, appealed thereto. SEC. 39. Abolition of existing Supreme Court. The existing Audiencia or Supreme Court is hereby abolished, and the Supreme Court provided by this Act is substituted in place thereof.

Sections 64 and 65 of the same Act allowed the same procedure as regards the transfer of cases and processes pending in the abolished Spanish Courts of First Instance to the tribunals of the same name established by the Philippine Commission. SEC. 64. Disposition of records, papers, causes, and appeals, now pending in the existing Courts of First Instance. All records, books, papers, actions, proceedings, and appeals lodged, deposited, or pending in the Court of First Instance as now constituted of or any province are transferred to the Court of First Instance of such province hereby established, which shall have the same power and jurisdiction over them as if they had been primarily lodged, deposited, filed, or commenced therein, or in case of appeal, appealed thereto. SEC. 65. Abolition of existing Courts of First Instance. The existing Courts First Instance are hereby abolished, and the Courts of First Instance provided by this Act are substituted in place thereof. The same procedure has been followed by the Philippine Commission eventhough the courts of origin of the judicial processes to be transferred and continued belonged to the same government and sovereignty of the courts which are empowered to continue said processes. So section 78 of Act No. 136, after the repeal of all acts conferring upon American provost courts in the Philippines jurisdiction over civil actions, expressly provided that said civil actions shall be transferred to the newly created tribunals. And it provided specifically that "the Supreme Court, Courts of the First Instance and courts of the justice of the peace established by this Act (No. 136) are authorized to try and determine the actions so transferred to them respectively from the provost courts, in the same manner and with the same legal effect as though such actions had originally been commenced in the courts created" by virtue of said Act. MUNICIPAL COURTS UNDER ACT NO. 183 On July 30, 1901, the Philippine Commission enacted the Organic Act of the City of Manila, No. 183. Two municipal courts for the city were created by section 40 of said Act, one for the northern side of Pasig River and the other for the southern side. They were courts with criminal jurisdiction or identical cases under the jurisdiction of the justices of the peace then existing in Manila. Although both courts were of the same jurisdiction, in order that the criminal cases belonging to the justice of the peace courts may be transferred to the municipal courts just created, and the proceedings may be continued by the same, the Philippine Commission considered it necessary to pas the proper enabling act.

So on August 5, 1901, it enacted Act No. 186, section 2 of which provides that all criminal cases and proceedings pending in the justices of the peace of Manila are transferred to the municipal courts, which are conferred the jurisdiction to continue said cases and proceedings. THE CABANTAG CASE On August 1, 1901, Narciso Cabantag was convicted of murder by a military commission. (Cabantag vs. Wolfe, 6 Phil., 273.) The decision was confirmed on December 10, 1901, and his execution by hanging was set for January 12,1902. . On December 26, 1901, he fled, but surrendered to the authorities on July 18, 1902. The Civil Governor on December 2, 1903, commuted the death penalty to 20 years imprisonment. The commutation was approved by the Secretary of War, following instructions of the President. Cabantag filed later a writ of habeas corpus on the theory that, with the abolition of the military commission which convicted him, there was no existing tribunal which could order the execution of the penalty of imprisonment. The Supreme Court denied the writ, but stated that, if the petitioner had filed the writ before the enactment of Act No. 865, the question presented to the Supreme Court would have been different. Act No. 865, enacted on September 3, 1903, is enabling law, wherein it is provided that decisions rendered by the provost courts and military commission shall be ordered executed by the Courts of First Instance in accordance with the procedure outlined in said Act. It is evident from the foregoing that this Supreme Court has accepted and confirmed the doctrine of the necessity of an enabling act in order that our Courts of First Instance could exercise jurisdiction to execute the decision of the abolished provost courts and military commission. It is evident that the doctrine is applicable, with more force, to the judicial processes coming from governments deriving their authority from a foreign enemy state. THE DOCTRINE IN THE UNITED STATES It is also evident that the Congress of the United States, by enacting the Bill of the Philippines on July 1, 1902, confirmed also the same doctrine. In effect, in section 9 of said Act, the Congress approved what the Philippine Commission did as to the jurisdiction of the courts established and transfer of cases and judicial processes, as provided in Acts Nos. 136, 186, and 865.

The same doctrine was adopted by the United States government as part of its international policy, as could be seen in Article XII of the Treaty concluded with Spain on December 10, 1898, in Paris. Even in 1866 the Congress of the United States followed the same doctrine. The suit, shown by the record, was originally instituted in the District Court of the United States for the District of Louisiana, where a decree was rendered for the libellant. From the decree an appeal was taken to the Circuit Court, where the case was pending, when in 1861, the proceedings of the court were interrupted by the civil war. Louisiana had become involved in the rebellion, and the courts and officers of the United States were excluded from its limits. In 1862, however, the National authority had been partially reestablished in the State, though still liable to the overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and held military possession of the city and such other portions of the State as had submitted to the General Government. The nature of this occupation and possession was fully explained in the case of The Vinice. Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation, instituted a Provisional Court of the State of Louisiana, with authority, among other powers, to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this cause was transferred into the Provisional Court thus, constituted, and was heard, and a decree was again rendered in favor of the libellants. Upon the restoration of civil authority in the State, the Provincial Court, limited in duration, according to the terms of the proclamation, by the event, ceased to exist. On the 28th of July, 1866, Congress enacted that all suits, causes and proceedings in the Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the Eastern District of Louisiana, should be transferred to that court, and heard, and determined therein; and that all judgements, orders, and decrees of the Provisional Court in causes transferred to the Circuit Court should at once become the orders, judgements, and decrees of that court, and might be enforced, pleaded, and proved accordingly. It is questioned upon these facts whether the establishment by the President of a Provisional Court was warranted by the Constitution. xxx xxx xxx

We have no doubt that the Provisional Court of Louisiana was properly established by the President in the exercise of this constitutional authority during war; or that Congress had power, upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer of cases pending in that court, and of its judgement and decrees, to the proper courts of the United States. (U. S. Reports, Wallace, Vol. 9, The Grapeshot, 131-133.)

JUDGEMENTS OF THE REBEL COURTS IN LOUISIANA WERE VALIDATED BY CONSTITUTIONAL PROVISION During the civil war in 1861, the prevailing rebel forces established their own government in Louisiana. When the rebel forces were overpowered by the Union Forces and the de facto government was replaced by the de jure government, to give effect to the judgments and other judicial acts of the rebel government, from January 26, 1861, up to the date of the adoption of the State Constitution, a provision to said effect was inserted in said document. Section 149 of the Louisiana Constitution reads as follows: All the rights, actions, prosecutions, claims, contracts, and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not been adopted; all judgments and judicial sales, marriages, and executed contracts made in good faith and in accordance with existing laws in this State rendered, made, or entered into, between the 26th day of January, 1861, and the date when this constitution shall be adopted, are hereby declared to be valid, etc. (U. S. Report, Wallace, Vol. 22, Mechanics' etc. Bank vs. Union Bank, 281.) EVEN AMONG SISTERS STATES OF THE UNITED STATES JUDGEMENTS ARE NOT EXECUTORY The member states of the United States of America belong to the same nation, to the country, and are under the same sovereignty. But judgements rendered in one state are not executory in other states. To give them effect in other states it is necessary to initiate an original judicial proceedings, and therein the defendants in the domestic suit may plead bar the sister state judgement puis darrien continuance. (Wharton, on the Conflict of Laws, Vol. II, p. 1411.) Under the Constitution of the United States, when a judgement of one state in the Union is offered in a court of a sister state as the basis of a suit nil debet cannot be pleaded. The only proper plea is nul tiel record. (Id., p. 1413.). It is competent for the defendant, however, to an action on a judgement of a sister state, as to an action on a foreign judgement, to set up as a defense, want of jurisdiction of the court rendering the judgement; and, as indicating such want of jurisdiction, to aver by plea that the defendant was not an inhabitant of the state rendering the judgement, and had not been served with process, and did

not enter his appearance; or that the attorney was without authority to appear. (Id., pp. 1414-1415.) The inevitable consequence is that the courts of the Commonwealth of the Philippines, in the absence of an enabling act or of an express legislative grant, have no jurisdiction to take cognizance and continue the judicial processes, procedures, and proceedings of the tribunals which were created by the Japanese Military Administration and functioned under the Vargas Philippine Executive Commission of the Laurel Republic of the Philippines, deriving their authority from the Emperor, the absolute ruler of Japan, the invading enemy, and not from the Filipino people in whom, according to the Constitution, sovereignty resides, and from whom all powers of government emanate. The position of Honorable Asenio P. Dizon, the respondent judge of the Court of the First Instance of Manila in declaring himself without jurisdiction nor authority to continue the proceedings which provoked the present controversy, being a judicial process of a Japanese sponsored government, is absolutely correct, under the legal doctrines established by the United States and the Philippine Government, and consistently, invariably, and without exception, followed by the same. If we accept, for the sake of argument, the false hypothesis that the Commonwealth tribunals have jurisdiction to continue the judicial processes left pending by the courts of the governments established under the Japanese regime, the courts which disappeared and, automatically, ceased to function with the ouster of the enemy, the position of the Judge Dizon, in declining to continue the case, is still unassailable, because, for all legal purposes, it is the same as if the judicial processes in said case were not taken at all, as inevitable result of the sweeping and absolute annulment declared by the General MacArthur in the October Proclamation. In said proclamation it is declared in unmistakable and definite terms that "ALL PROCESSES" of the Japanese sponsored governments "ARE NULL AND VOID AND WITHOUT LEGAL EFFECT", and they shall remain so until the Commonwealth, through its legislative power, decides otherwise in a proper validating act. The fact that the Japanese invaders, under international law, were in duty bound to establish courts of justice during the occupation, although they made them completely powerless to safeguard the constitutional rights of the citizens, and mere figureheads as regards the fundamental liberties of the helpless men, women and children of our people, so much so that said courts could not offer even the semblance of protection when the life, the liberty, the honor and dignity of our individual citizens were wantonly trampled by any Japanese, military or civilian, does not change the situation. "ALL PROCESSES" of said court are declared "NULL AND VOID AND WITHOUT LEGAL EFFECT" in the October proclamation, and we do not have any other alternative but to accept the law, as said proclamation has the full force of a law. The fact that in the past, the legitimate governments, once restored in their own territory, condescended in many cases to recognize and to give effect to judgments

rendered by courts under the governments set up by an invading military occupant or by a rebel army, does not elevate such condescension to the category of a principle, when Wheaton declares that no international wrong is done if the acts of the invader are reversed. Many irrelevant authorities were cited to us as to the duties imposed by the international law on military occupants, but no authority has been cited to the effect that the representative of the restored legitimate government is a bound to recognize and accept as valid the acts and processes of said occupants. On the contrary, Wheaton says that if the occupant's acts are reversed "no international wrong would be committed." Following the authority of Wheaton, undisputed by the majority, General MacArthur thought, as the wisest course, of declaring "NULL AND VOID AND WITHOUT EFFECT," by official proclamation, "ALL PROCESSES" under the Japanese regime, that is legislative, executive and judicial processes, which fall under the absolute adjective "ALL". That declaration is a law. It is a law that everybody bound to accept and respect, as all laws must be accepted and respected. It is a law that the tribunals are duty bound to give effect and apply. We are not unmindful of the adverse consequences to some individuals of the annullment of all the judicial processes under the Japanese regime, as provided in the October Proclamation, but the tribunals are not guardians of the legislative authorities, either an army commander in chief, during war, or a normal legislature, in peace time. The tribunals are not called upon to guide the legislative authorities to the wisdom of the laws to be enacted. That is the legislative responsibility. Our duty and our responsibility is to see to it that the law, once enacted, be applied and complied with. No matter the consequences, no matter who might be adversely affected, a judge must have the firm resolve and the courage to do his duty, as, in the present case, Judge Dizon did, without fear nor favor. We cannot see any reason why we should not uphold him in his stand in upholding the law. It is our official duty, national and international duty. Yes. Because this Supreme Court is sitting, not only as a national court, but as an international court, as is correctly stated in the concurring opinion of Justice De Joya, and we should feel the full weight of the corresponding responsibility, as the American courts with admiralty jurisdiction and the Prize Courts of England did feel. In fact, it is in the judiciary where, more than in any point of view is more pressing, more imperative, more unavoidable. Justice has no country. It is of all countries. The horizon of justice cannot be limited by the scene where our tribunals are functioning and moving. That horizon is boundless. That is why in our constitution the bill of rights has been written not for Filipinos, but for all persons. They are rights that belong to men, not as Filipinos, Americans, Russians, Chinese or Malayan, but as a members of humanity. The international character of our duty to administer justice has become more specific by the membership of our country in the

United Nations. And let us not forget, as an elemental thing, that our primary duty is to uphold and apply the law, as it is; that we must not replace the words of the law with what we might be inclined to surmise; that what is clearly and definitely provided should not be substituted with conjectures and suppositions; that we should not try to deduce a contrary intention to that which is unequivocally stated in the law; that we should not hold valid what is conclusively declared null and void. The October Proclamation declared "ALL PROCESSES" under the Japanese regime "AND VOID WITHOUT EFFECT", so they must stand. There is no possible way of evasion. "ALL PROCESSES", in view of the meaning of the absolute adjective "ALL", include "JUDICIAL PROCESSES". Allegatio contra factum non est admittenda.

CONCLUSION For all the foregoing reasons we conclude: 1. That General MacArthur had full legal authority to issue the October Proclamation, and that no principle of the international law is violated by said proclamation, no international wrong being committed by the reversal by the legitimate government of the acts of the military invader. 2. That said proclamation was issued in full conformity with the official policies to which the United States and Philippine Governments were committed, and the annulment of all the facts of the governments under the Japanese regime, legislative, executive, and judicial, is legal, and justified by the wrongs committed by the Japanese. 3. That when General MacArthur proclaimed and declared in the October Proclamation "That all laws, regulations and processes" of the Japanese sponsored governments, during enemy occupation, "are null and void and without effect", he meant exactly what he said. 4. That where General MacArthur said "all processes" we must read and understand precisely and exactly "all processes", and not "some processes". "All" and "some" have incompatible meanings and are not interchangeable. 5. That the word "processes" includes judicial procedures, proceedings, processes, and cases. Therefore, "all processes" must include "all judicial processes.". 6. That we have no right to attribute General MacArthur an intention different from what he has plainly, clearly, unmistakably expressed in unambiguous words with familiar meaning generally understood by the common man.

7. That the judicial proceedings here in question are included among those adversely affected by the October Proclamation. 8. That the Commonwealth tribunals have no jurisdiction to take cognizance of nor to continue the judicial proceedings under the Japanese regime. 9. That to exercise said jurisdiction an enabling act of the Congress is necessary. 10. That respondent Judge Dizon did not commit the error complained of in the petition, and that the petition has no merits at all. We refuse to follow the course of action taken by the majority in the present case. It is a course based on a mistaken conception of the principles of international law and their interpretation and application, and on a pinchbeck. It is a course based on misconstruction or misunderstanding of the October Proclamation, in utter disregard of the most elemental principles of legal here meneutics. It is a course that leads to nowhere, except to the brink of disaster, because it is following the dangerous path of ignoring or disobeying the law. Let us not allow ourselves to be deceived. The issue confronting us is not of passing importance. It is an issue of awesome magnitude and transcendency. It goes to and reaches the very bottom. It is simple. Lacking in complexities. But it may shake the very foundation of society, the cornerstone of the state, the primary pillar of the nation. It may dry the very foundation of social life, the source of vitalizing sap that nurtures the body politic. The issue is between the validity of one or more Japanese regime processes and the sanctity of the law. That is the question, reduced to its ultimate terms. it is a simple dilemma that is facing us. It is the alpha and the omega of the whole issue. Either the processes, or the law. We have to select between two, which to uphold. It is a dilemma that does not admit of middle terms, or of middle ways where we can loiter with happy unconcern . We are in the cross road: which way shall we follow? The processes and the law are placed in the opposite ends of the balance. Shall we inclined the balance of justice to uphold the processes and defeat law, or vice versa? We feel jittery because some judicial processes might be rescinded or annulled, but we do not tremble with sincere alarm at the thought of putting the law under the axe, of sentencing law to be executed by the guillotine. We feel uneasy, fancying chaos and paralyzation of social life, because some litigants in cases during the Japanese regime will be affected in their private interests, with the annulment of some judicial processes, but we adopt an attitude of complete nonchalance in throwing law overboard. This baffling attitude is a judicial puzzle that nobody will understand. So it is better that we should shift to a more understandable way, that which is conformable to the standard that the world expects in judicial action.

No amount of arguments and lucubration's, no amount of speculative gymnastics, no amount of juggling of immaterial principles of international law, no amount of presumptions and suppositions, surmises and conjectures, no amount of dexterity in juridical exegesis can divert our attention from the real, simple, looming, hypostasis of the issue before us: Law. It is Law with all its majestic grandeur which we are defying and intending to overthrow from the sacred pedestal where the ages had placed her as a goddess, to be enshrined, obeyed, and venerated by men, forever. Let us not dare to lay our profaning hands on her vestal virginity, lest the oracle should fling at us the thunder of his prophetic anathema. We cannot therefore vote except for the denial of the petition.

HILADO, J., dissenting: I dissent from the opinion of the majority and, pursuant to the Constitution, proceed to state the reason for my dissent. The proceeding involved in the case at bar were commenced by a complaint filed by the instant petitioner, as plaintiff, on November 18, 1944, in civil case No. 3012 of the socalled Court of First Instance of Manila, the complaint bearing this heading and title: "The Republic of the Philippines In the Court of First Instance of Manila" (Annex X of Exhibit A of petition for mandamus). The farthest that said proceedings had gone before the record was burned or destroyed during the battle for Manila, was the filing by counsel for plaintiff therein of their opposition to a motion for dismissal filed by opposing counsel. It is, therefore, plain that the case had not been heard on the merits when the record was burned or destroyed. The respondent judge, in his order dated June 6, 1945, disposing of the petition dated May 25, 1945 filed by petitioner, as a plaintiff in said case, and of the petition filed by respondent Eusebio Valdez Tan Keh, as defendant therein, on May 31, 19045, held: " first, that by virtue of the proclamation of General MacArthur quoted above, all laws, regulations and processes of any other government in the Philippines than that of the Commonwealth became null and void and without legal effect in Manila on February 3, 1945 or, at the lates, on February 27 of the same year; second that the proceedings and processes had in the present case having been before a court of the Republic of the Philippines and in accordance with the laws and regulations of said Republic, the same are now void and without legal effect; third, that this Court as one of the different courts of general jurisdiction of the Commonwealth of the Philippines, has no authority to take cognizance of and continue said proceedings to final judgement, until and unless the Government of the Commonwealth of the Philippines, in the manner and form provided by law, shall have provided for the transfer of the jurisdiction of the courts of the now

defunct Republic of the Philippines, and the causes commenced and left pending therein, to the courts created and organized by virtue of the provisions of Act No. 4007, as revived by Executive Order No. 36, or for the validation of all proceedings had in said courts." Petitioner prays that this Court declare that the respondent judge should not have ordered the suspension of the proceedings in civil case No. 3012 and should continue and dispose of all the incidents in said case till its complete termination. In my opinion, the petition should denied. In stating the reasons for this dissent, we may divide the arguments under the following propositions: 1. The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148); 2. (a) The government styled as, first, the "Philippine Executive Commission "and later as the Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by his order was not a de-facto government the socalled Court of First Instance of Manila was not a de facto court, and the judge who presided it was not a de facto judge; (b) the rules of International Law regarding the establishment of a de facto Government in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments thus established here by Japan; 3. The courts of those governments were entirely different from our Commonwealth courts before and after the Japanese occupation; 4. The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of either or both of those Japanese-sponsored governments; 5. Even consideration of policy of practical convenience militate against petitioner's contention. I The proceedings in said civil case No. 3012 are null and void under General of the Army MacArthur's proclamation of October 23, 1944 (41 Off. Gaz., 147, 148). In this proclamation, after reciting certain now historic facts, among which was that the so-called government styled as the "Republic of the Philippines" was established on October 14, 1943 "under enemy duress, . . . based upon neither the free expression of the people's will nor the sanction of the Government of the United States," the great Commander-in-Chief proclaimed and declared:

xxx

xxx

xxx

3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control; and xxx xxx xxx

I do enjoin upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government whose seat is now firmly re-established on Philippine soil. The evident meaning and effect of the 3rd paragraph above quoted is, I think, that as the different areas of the Philippines were progressively liberated, the declaration of nullity therein contained shall attach to the laws, regulations and processes thus condemned in so far as said areas were concerned. Mark that the proclamation did not provide that such laws, regulations and processes shall be or are annulled, but that they are null and void. Annulment implies some degree of the effectiveness in the act annulled previous to the annulment, but a declaration of nullity denotes that the act is null and void ab initio the nullity precedes the declaration. The proclamation speaks in the present tense, not in the future. If so, the fact that the declaration of nullity as to the condemned laws, regulations, and processes in areas not yet free from enemy occupation and control upon the date of the proclamation, would attach thereto at a later date, is no argument for giving them validity or effectiveness in the interregnum. By the very terms of the proclamation itself, that nullity had to date back from the inception of such laws, regulations and processes; and to dispel any shadow of doubt which may still remain, we need only consider the concluding paragraph of the proclamation wherein the Commander in Chief of the army liberation solemnly enjoined upon all loyal citizens of the Philippines full respect for and obedience to the Constitution of the Commonwealth of the Philippines and the laws, regulations and other acts of their duly constituted government. This is all-inclusive it comprises not only the loyal citizens in the liberated areas but also those in areas still under enemy occupation and control. It will be noticed that the complaint in said civil case No. 3012 was filed twenty-six days after the above-quoted proclamations of General of the Army MacArthur. If the parties to said case were to consider the proceedings therein up to the date of the liberation of Manila valid and binding, they would hardly be complying with the severe injunction to render full respect for and obedience to our Constitution and the laws, regulations and other acts of our duly constituted government from October 23, 1944, onwards. Indeed, to my mind, in choosing between these two courses of action, they would be dangerously standing on the dividing line between loyalty and disloyalty to this country and its government. The proceeding in question, having been had before the liberation of Manila, were unquestionably "processes" of the Japanese-sponsored government in the Philippines within the meaning of the aforesaid proclamation of General of the Army MacArthur and,

consequently, fall within the condemnation of the proclamation. Being processes of a branch of a government which had been established in the hostility to the Commonwealth Government, as well as the United States Government, they could not very well be considered by the parties to be valid and binding, at least after October 23, 1944, without said parties incurring in disobedience and contempt of the proclamation which enjoins them to render full respect for the obedience to our Constitution and the laws, regulations and other acts of our duly constituted government. Nine days after the inauguration of the so-called "Republic of the Philippines," President Franklin Delano Roosevelt of the United States declared in one of his most memorable pronouncements about the activities of the enemy in the Philippines, as follows: One of the fourtheenth of this month, a puppet government was set up in the Philippine Island with Jose P. Laurel, formerly a justice of the Philippine Supreme Court, as "president." Jorge Vargas, formerly as a member of the Commonwealth Cabinet, and Benigno Aquino, also formerly a member of that cabinet, were closely associated with Laurel in this movement. The first act of the new puppet regime was to sign a military alliance with Japan. The second act was a hyphocritical appeal for American sympathy which was made in fraud and deceit, and was designed to confuse and mislead the Filipino people. I wish to make it clear that neither the former collaborationist "Philippine Executive Commission" nor the present "Philippine Republic " has the recognition or sympathy of the Government of the United States. . . . Our symphaty goes out to those who remain loyal to the United States and the Commonwealth that great majority of the Filipino people who have not been deceived by the promises of the enemy. October 23, 1943. FRANKLIN DELANO ROOSEVELT President of the United States (Form U.S. Naval War College International Law Documents, 1943, pp. 93, 94.). It is a fact of contemporary history that while President Manuel L. Quezon of the Philippines was in Washington, D.C., with his exiled government, he also repeatedly condemned both the "Philippine Executive Commission" and the "Philippine Republic," as they had been established by or under orders of the Commander in Chief of the Imperial Japanese Forces. With these two heads of the Governments of the United States and the Commonwealth of the Philippines condemning the "puppet regime" from its very inception, it is beyond my comprehension to see how the proceedings in question could be considered valid and binding without adopting an attitude incompatible with theirs. As President Roosevelt said in his above quoted message, "Our symphaty goes out to those remain loyal to the United States and the

Commonwealth that great majority of the Filipino people who have not been deceived by the promises of the enemy. The most that I can concede is that while the Japanese Army of occupation was in control in the Islands and their paramount military strength gave those of our people who were within their reach no other alternative, these had to obey their orders and decrees, but the only reason for such obedience would be that paramount military strength and not any intrinsic legal validity in the enemy's orders and decrees. And once that paramount military strength disappeared, the reason for the obedience vanished, and obedience should likewise cease. As was stated by the Supreme Court of the United States in the case of Williams vs. Bruffy (96 U.S., 176; 24 Law. ed., 719), "In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of the authority exercised." (Emphasis ours.) The court there refers to its own former decision in Thorington vs. Smith, and makes it clear that the doctrine in the Thorington case, so far as the effects of the acts of the provisional government maintained by the British in Casetine, from September, 1814 to the Treaty of Peace in 1815, and the consideration of Tampico as United States territory, were concerned, was limited to the period during which the British, in the first case, retained possession of Castine, and the United States, in the second, retained possession of Tampico. In referring to the Confederate Government during the Civil War, as mentioned in the Thorington case, the court again says in effect that the actual supremacy of the Confederate Government over a portion of the territory of the Union was the only reason for holding that its inhabitants could not but obey its authority. But the court was careful to limit this to the time when that actual supremacy existed, when it said: . . . individual resistance to its authority then would have been futile and, therefore, unjustifiable." (Emphasis ours.) Because of its pertinence, we beg leave to quote the following paragraph from that leading decision: There is nothing in the language used in Thorington vs. Smith (supra), which conflicts with these views. In that case, the Confederate Government is characterized as one of paramount force, and classed among the governments of which the one maintained by great Britain in Castine, from September 1814, to the Treaty of Peace in 1815, and the one maintained by the United States in Tampico, during our War with Mexico, are examples. Whilst the British retained possession of Castine, the inhabitants were held to be subject to such laws as the British Government chose to recognize and impose. Whilst the United States retainedpossession of Tampico, it was held that it must regarded and respected as their territory. The Confederate Government, the court observed, differed from these temporary governments in the circumstance that its authority did not justifying acts of hostility to the United States, "Made obedience to its authority in civil and local matters not only a necessity, but a duty." All that was meant by this language was, that as the actual supremancy of the

Confederate Government existed over certain territory, individual resistance to its authority then would have been futile and, therefore, unjustifiable. In the face of an overwhelming force, obedience in such matters may often be a necessity and, in the interest of order, a duty. No concession is thus made to the rightfulness of the authority exercised. (Williams vs. Bruffy, 24 Law ed., 719; emphasis ours.) The majority opinion, in considering valid the proceedings in question, invokes the rule that when a belligerent army occupies a territory belonging to the enemy, the former through its Commander in Chief, has the power to establish thereon what the decisions and treaties have variously denominated provisional or military government, and the majority holds that the Japanese-sponsored government in the Philippines was such a government. Without prejudice to later discussing the effects which the renunciation of war as an instrument of national policy contained in our Commonwealth Constitution, as well as in the Briand-Kellog Pact, must have produced in this rule in so far as the Philippines is concerned, let us set forth some considerations apropos of this conclusion of the majority. If the power to establish here such a provisional government is recognized in the Commander in Chief of the invasion army, why should we not recognize at least an equal power in the Commander in Chief of the liberation army to overthrow that government will all of its acts, at least of those of an executory nature upon the time of liberation? Considering the theory maintained by the majority, it would seem that they would recognize in the Japanese Commander in Chief the power to overthrow the Commonwealth Government, and all of its acts and institutions if he had choosen to. Why should at least an equal power be denied the Commander in Chief of the United States Army to overthrow the substitute government thus erected by the enemy with all of its acts and institutions which are still not beyond retrieve? Hereafter we shall have occasion to discuss the aspects of this question from the point of view of policy or the practical convenience of the inhabitants. If the Japanese Commander in Chief represented sovereignty of Japan, the American Commander in Chief represented the sovereignty of the United States, as well as the Government of the Commonwealth. If Japan had won this war, her paramount military supremacy would have continued to be exerted upon the Filipino people, and out of sheer physical compulsion this country would have had to bow to the continuance of the puppet regime that she had set up here for an indefinite time. In such a case, we admit that, not because the acts of that government would then have intrinsically been legal and valid, but simply because of the paramount military force to which our people would then have continued to be subjected, they would have had to recognize as binding and obligatory the acts of the different departments of that government. But fortunately for the Filipinos and for the entire civilized world, Japan was defeated. And I now ask: Now that Japan has been defeated, why should the Filipinos be still bound to respect or recognize validity in the acts of the Japanese-sponsored government which has been so severely condemned by both the heads of the United States and our Commonwealth Government throughout the duration of the war? If we were to draw a parallel between that government and that which was established by the Confederate States during the American Civil War, we will find that both met with ultimate failure. And, in my opinion, the conclusion to be drawn should be the same in both cases.

As held by the United States Supreme Court in Williams vs. Bruffy (supra), referring to the Confederate Government, its failure carried with it the dissipation of its pretentions and the breaking down in pieces of the whole fabric of its government. The Court said among other things: The immense power exercised by the government of the Confederate States for nearly four years, the territory over which it extended, the vast resources it wielded, and the millions who acknowledged its authority, present an imposing spectacle well fitted to mislead the mind in considering the legal character of that organization. It claimed to represent an independent nation and to posses sovereign powers; as such to displace to jurisdiction and authority of the United States from nearly half of their territory and, instead of their laws, to substitute and enforce those of its own enactment. Its pretentions being resisted, they were submitted to the arbitrament of war. In that contest the Confederacy failed; and in its failure its pretentions were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. (24 Law, ed., 719; emphasis ours.) By analogy, if the Japanese invasion and occupation of the Philippines had been lawful which, however, is not the case and if Japan had succeeded in permanently maintaining the government that she established in the Philippines, which would have been the case had victory been hers, there would be more reason for holding the acts of that government valid, but because Japan has lost the war and, therefore, failed in giving permanence to that government, the contrary conclusion should legitimately follow. The validity of legislation exercised by either contestant "depends not upon the existence of hostilities but upon the ultimate success of the party which it is adopted" (emphasis ours). And, referring to the overthrow of the of the Confederacy, the Court, said, "when its military forces were overthrown, it utterly perished, and with it all its enactments" (emphasis ours) The majority cite on page 9-10 of their opinion a passage from the same case of Williams vs. Bruffy, supra, which is a mere obiter dictum. The majority opinion says that in this passage the Court was "discussing the validity of the acts of the Confederate States." In the first place, an examination of the decision will reveal that the controversy dealt with an act of the Confederate Government, not of the Confederate States individually; and in the second place, the quoted passage refers to something which was not in issue in the case, namely, the acts of the individual States composing the Confederacy. But even this passage clearly places the case at bar apart from the Court's pronouncement therein. The quoted passage commences by stating that "The same general form of government the same general laws for the administration of justice and the protection of private rights, which has existed in the States prior to the rebellion, remanded during (its) continuance and afterwards. "In the case at bar, the same general form of the Commonwealth Government did not continue under the Japanese, for the simple reason that one of the first acts of the invaders was to overthrow the Commonwealth Constitution and, therefore, the constitutional government

which existed thereunder, as an effect of the following acts and decrees of the Commander in Chief of the Imperial Japanese Forces: 1. Order No. 3, dated February 20, 1942 of the Commander in Chief of the Imperial Japanese Forces to the Chairman of the Philippine Executive Commission directed that, in the exercise of legislative, executive and judicial powers in the Philippines, the "activities" of the "administrative organs and judicial courts in the Philippines shall be based upon the existing status, order, ordinances and the Commonwealth Constitution (1 Official Journal of the Japanese Military Administration, page 34). Under the frame of government existing in this Commonwealth upon the date of the Japanese invasion, the Constitution was the very fountain-head of the validity and effects of all the "status, orders, and ordinances" mentioned by the Japanese Commander in Chief, and in overthrowing the Constitution he, in effect, overthrew all of them. 2. Instruction No. 6 of the Japanese Military Administration (Vol. 1, usages 36 et seq., Official Gazette, edited at the Office of the Executive Commission) gave the "Detailed Instruction Based on Guiding Principle of the Administration," and among other things required "The entire personnel shall be required to pledge their loyalty to the Imperial Japanese Forces. . . ." (This, of course, was repugnant to the frame of government existing here under the Commonwealth Constitution upon the date of invasion.) 3. Proclamation dated January 3, 19452 of the Japanese Commander in Chief provided in paragraph 3 that "The Authorities and the People of the Commonwealth should sever their relations with the U.S. o . . ." (This is, likewise, repugnant to the Commonwealth Constitution and the to the Government of that Commonwealth Constitution and to the Government of that Commonwealth which was expressly made subject to the supreme sovereignty of the United States until complete independence is granted, not by the mere will of the United States, but by virtue of an agreement between that Government and ours, under the Tydings-McDuffie Act.) The individual States of the Confederate and their governments existed prior to the Civil War and had received the sanction and recognition of the Union Government, for which the Federal Supreme Court was speaking in the Williams-Bruffy case; while the Japanese-sponsored governments of the "Philippine Executive Commission" and the Republic of the Philippines" neither existed here before the war nor had received the recognition or sanction of either the United States or the Commonwealth Government nay, they had received the most vigorous condemnation of both. The Court further says in Williams vs. Bruffy (supra): No case has been cited in argument, and we think unsuccesfully attempting to establish a separate revolutionary government have been sustained as a matter of legal right. As justly observed by the late Chief Justice in the case of Shortridge vs. Macon, I Abb. U.S., 58, decided at the circuit, and, in all material respects like the one at bar, "Those who engage in rebellion must consider the consequences. If theysucceed, rebellion becomes revolution, and the new

government will justify is founders. If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed. S.C., Chase, Dec., 136. (Williams vs. Bruffy, 96 U.S., 176; 24 Law. ed., 716, 718.) (Emphasis ours.) I am of opinion that the principles thus enunciated for the case of an unsuccessful rebellion should be applied with greater force to the case of a belligerent who loss the war. And since the founding of the Japanese-sponsored government in the Philippines was designed to supplant and did actually supplant the rightful government and since all its acts could not but a hostile to the latter (however blameless the officials who acted under enemy duress might be), and since Japan failed, all said acts, particularly those of the Japanese-sponsored court in said civil case No. 3012, "are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed", quoting the language of the court in Shortridgevs. Macon, cited by Mr. Justice Field in Williams vs. Bruffy, supra (24 Law. ed., 718). II (a) The government styled as, first, the "Philippine Executive Commission" and later as the Republic of the Philippines", established here by the Commander in Chief of the Imperial Japanese Forces or by the his order was not a de facto government--the so-called Court of First Instance of Manila was not a de factocourt and the who presided it was not a de facto judge; (b) The rules of International Law regarding the establishment of a de facto government in territory belonging to a belligerent but occupied or controlled by an opposing belligerent are inapplicable to the governments thus established here by Japan. Under the doctrine of Williams vs. Bruffy, supra, and the pertinent cases therein cited, the short-lived provisional government thus established by the Japanese in the Philippines should be classified, at best, as a government of paramount force. But this is not all. The Constitution of this Commonwealth which has been expressly approved by the United States Government, in Article II, section 3, under the heading "Declaration of Principles", renounces war as an instrument of national policy. This renunciation of war as an instruments of national policy follows an equal renunciation in the Briand-Kellog Pact. The rules of International Law , cited in support of the power or right of a belligerent army of occupation to set up a provisional government on occupied enemy territory, were evolved prior to the first World War, but the horrors and devastations of that war convinced, at least the governments of the United States and France, that they should thereafter renounce war as an instrument of national policy, and they consequently subscribed the Briand-Kellog Pact. Those horrors and devastations were increased a hundred fold, if not more, in this second World War, but even before this war occurred, our own people, through our Constitutional delegates, who framed the

Commonwealth Constitution also adopted the same doctrine, and embodied an express renunciation of war as an instrument of national policy in the instrument that they drafted. It is true that in section 3, Article II, above-cited, our Constitution adopts the generally accepted principles of International Law as a part of the law of the Nation. But, of course, this adoption is exclusive of those principles of International Law which might involve recognition of war as an instrument of national policy. It is plain that on the side of the Allies, the present war is purely defensive. When Japan started said war, treacherously and without previous declaration, and attacked Pearl Harbor and the Philippines on those two fateful days of December 7 and 8, 1941, she employed war as an instrument of the national policy. Under the Briand-Kellog Pact and our Commonwealth Constitution, the United States and the Commonwealth Government could not possibly have recognized in Japan any right, as against them, to employ that war as an instrument of her national policy, and, consequently, they could not have recognized in Japan power to set up in the Philippines the puppet government that she later set up, because such power would be a mere incident or consequence of the war itself. The authorities agree that such a power, under the cited rules, is said to a right derived from war. (67 C.J., p. 421, sec. 171.) There can be no question that the United States and the Commonwealth Governments were free to refuse to be bound by those rules when they made their respective renunciations above referred to. Indeed, all the United Nations have exercised this free right in their Charter recently signed at San Francisco. As necessary consequence of this, those rules of International Law were no longer applicable to the Philippines and to the United States at the time of the Japanese invasion as a corollary, it follows that we have no legal foundation on which to base the proposition that the acts of that Japanese-sponsored government in the Philippines were valid and binding. Moreover, I am of opinion, that although at the time of the Japanese invasion and up to the present, the United States retains over the Philippines, a certain measure of sovereignty, it is only for certain specified purposes enumerated in the Tydings-McDufie Act of the Commonwealth Constitution. (Ordinance appended to the Constitution.) And our territory was at the time of the Japanese invasion not a territory of the United States, within the meaning of the laws of war governing war-like operations on enemy territory. Our territory is significantly called "The National Territory" in Article I of our Constitution and this bears the stamps of express approval of the United States Government. The Philippines has been recognized and admitted as a member of the United Nations. We, therefore, had our own national and territorial identity previous to that invasion. Our nation was not at war with the Filipinos. And line with this, the Japanese army, in time, released Filipino war prisoners captured in Bataan. Lt. Gen. Maeda, Chief of Staff, Imperial Japanese Forces, in his speech of January 2, 1942, said: . . . we had not the slighest intensions to make your people our enemy; rather we considered them as our friends who will join us has hand-in-hand in the establishment of an orderly Greater East Asia. . . ., (Official Gazette, edited at the Office of the Executive Commission, Vol. I, p. 55.)

If the Philippines was a neutral territory when invaded by the Japanese, the following principles from Lawrence, International Law (7th ed.), p. 603, are pertinent: The Duties of Belligerent States Towards Neutral States. . . . To refrain from carrying on hostilities within neutral territory. We have already seen that, though this obligation was recognized in theory during the infancy of International law, it was often very imperfectly observed in practice. But in modern times it has been strickly enforced, and any State which knowingly ordered warlike operations to be carried on in neutral territory . . . would bring down upon itself the reprobation of civilized mankind. Hostilities may be carried on in the territory of either belligerent, on the high seas, and in territory belonging to no one. Neutral land and neutral territorial waters are sacred. No acts of warfare may lawfully take place within them. . . . (Emphasis ours.) In all the cases and authorities supporting the power or right to set up a provisional government, the belligerent had the right to invade or occupy the territory in the first instance. Such was not the case with the Philippines. President Roosevelt, in his message to the Filipino people, soon after the landing of American Forces in Leyte, on October 20, 1944, characterized Japan's invasion and occupation of the Philippines as "the barbarous, unprovoked and treacherous attack upon the Philippines," and he announced the American people's "firm determination to punish the guilty." (41 Off. Gaz., 149.) (Emphasis ours.) The illustrious leader of the United Nations could not have in more unmistakable terms the utter illegality of that invasion and occupation. If the establishment of a provinsional government in occupied territory by a belligerent is "a mere application or extension of the force by which the invasion or occupation was effected" (67 C.J., p. 421, sec 171), the illegality of the invasion, would necessarily permeate the government, which was its mere application or extention. The fact that shortly before December 8, 1941, the date of the "barbarous, unprovoked and treacherous attack," the meager and almost untrained forces of the Philippine Army had been inducted into the American Army, did not change the neutral status of the Philippines. That military measure had been adopted for purely defensive purposes. Nothing could be farther from the minds of the government and military leaders of the United States and the Philippines in adopting it than to embark upon any aggressive or warlike enterprise against any other nation. It is an old and honored rule dating as far back as the 18th century that even solemn promises of assistance made before the war by a neutral to a nation which later becomes a belligerent, would not change the status of the neutral even if such promises were carried out, so long as they were made for purely defensive purposes. In the words of Vattel "when a sovereign furnishes the succor due in virtue of a former defensive alliance, he does not associate himself in the war. Therefore he may fulfill his engagements and yet preserve an exact neutrality." (Lawrence, Principles of International Law [7th ed.], pp. 585, 586.) If the Filipinos had, from contemptible cowardice and fear, allowed their shores to be invaded, and their territory occupied by the Japanese without resistance, such invasion occupation would undoubtedly have been considered in violation of International Law.

Should the Filipinos be punished for having had the patriotism, bravery, and heroism to fight in defense of the sacredness of their land, the sanctity of their homes, and the honor and dignity of their government by giving validity, in whatever limited measure, to the lawless acts of the ruthless enemy who thus overran their country, and robbed them of the tranquility and happiness of their daily lives? And yet, to my mind, to give any measure of validity or binding effect to the proceedings of the Japanese-sponsored Court of First Instance of Manila, involved herein, would be to give that much validity or effect to the acts of those same invaders. To equalize the consequences of a lawful and a wrongful invasion of occupation, would be to equalize right and wrong, uphold the creed that might makes right, and adopt "the law of the jungle." If said Japanese-sponsored government was not a de facto government, it would seem clearly to follow that its "Court of First Instance of Manila" was not a de facto court. But it should additionally be stated that for it be a de facto court, its judge had to be a de facto judge, which he could not be, as presently demonstrated. As said by President Osmea, in replying to the speech of General of the Army MacArthur when the latter turned over to him the full powers and responsibilities of the Commonwealth Government, on February 27, 1945: xxx xxx xxx

The time has come when the world should know that when our forces surrendered in Bataan and Corregidor, resistance to the enemy was taken up by the people itself resistance which was inarticulate and disorganized in its inception but which grew from the day to day and from island until it broke out into an open warfare against the enemy. The fight against the enemy was truly a people's war because it counted with the wholehearted support of the masses. From the humble peasant to the barrio school teacher, from the volunteer guard to the women's auxilliary service units, from the loyal local official to the barrio folk each and every one of those contributed his share in the great crusade for liberation. The guerrillas knew that without the support of the civilian population, they could not survive. Whole town and villages dared enemy reprisal to oppose the hated invader openly or give assistance to the underground movement. . . . (41 Off. Gaz., 88, 89.) Under these facts, taken together with the General of the Army MacArthur's accurate statement that the "Republic of the Philippines" had been established under enemy duress, it must be presumed to say the least that the judge who presided over the proceedings in question during the Japanese occupation, firstly, accepted his appointment under duress; and secondly, acted by virtue of that appointment under the same duress. In such circumstances he could not have acted in the bona fide belief that the new "courts" created by or under the orders of the Japanese Military Commander in

chief had been legally created--among them the "Court of first Instance of Manila," that the Chairman of the "Philippine Executive Commission" or the President of the "Republic of the Philippines", whoever appointed him, and conferred upon him a valid title to his office and a legitimate jurisdiction to act as such judge. Good faith is essential for the existence of a de facto judge (Tayko vs. Capistrano, 53 Phil., 866, 872). The very idea of enemy duress would necessarily imply that but for the duress exerted upon him by the enemy he would have refused to accept the appointment and to act thereunder. And why? Because he must be presumed to know that the office to which he was thus appointed had been created by the enemy in open defiance of the Commonwealth Constitution and the laws and regulation promulgated by our Commonwealth Government, and that his acceptance of said office and his acting therein, if willfully done, would have been no less than an open hostility to the very sovereignty of the United Sates and to the Commonwealth Government, and a renunciation of his allegiance to both. There is no middle ground here. Either the judge acted purely under duress, in which case his acts would be null and void; or maliciously in defiance of said governments, in which case his acts would be null and void for more serious reasons. The courts created here by the Japanese government had to look for the source of their supposed authority to the orders of the Japanese Military Commander in chief and the so-called Constitution of the "Republic of the Philippines," which had been adopted in a manner which would shock the conscience of democratic peoples, and which was designed to supplant the Constitution which had been duly adopted by the Filipino people in a Constitutional Convention of their duly elected Constitutional Delegates. And it was decreed that the Commander in chief of the Imperial Japanese Forces "shall exercise jurisdiction over judicial courts." (Vol. 1, p. 7, Official Journal of the Japanese Military Administration, cited on pp. 2, 3, of the order of the respondent judge complained of and marked Exhibit H of the petition for mandamus.) How can our present courts legitimately recognize any efficacy in the proceedings of such an exotic judicial system, wherein the Commander in Chief of the Imperial Japanese Forces possessed the highest judicial jurisdiction? III The courts of those governments were entirely different from our Commonwealth courts before and after the Japanese occupation. Executive Order No. 36 of the President of the Philippines, dated March 10, 1945, in its very first paragraph, states the prime concern of the government "to re-establish the courts as fast as provinces are liberated from the Japanese occupation." If the courts under the Japanese-sponsored government of the "Republic of the Philippines" were the same Commonwealth courts that existed here under the Constitution at the time of the Japanese invasion, President Osmea would not be speaking of re-establishing those courts in his aforesaid Executive Order. For soothe, how could those courts under the "Republic of the Philippines" be the courts of the Commonwealth of the Philippines when they were not functioning under the Constitution of the Commonwealth and the laws enacted in pursuance of said Constitution? The jurisdiction of the Commonwealth

courts was defined and conferred under the Commonwealth Constitution and the pertinent legislation enacted thereunder, that of the Japanese-sponsored courts was defined and conferred by the orders and decrees of the Japanese Commander in Chief, and, perhaps, the decrees of the "Philippine Executive Commission" and the laws of the so-called Legislature under the Republic, which was not composed of the elected representatives of the people. The Justices and Judges of the Commonwealth courts had to be appointed by the President of the Commonwealth with confirmation by the Commission on Appointments, pursuant to the Commonwealth Constitution. The Chief Justice of the Supreme Court, under the "Philippine Executive Commission" was appointed by the Commander in Chief of the Imperial Japanese Forces, and the Associate Justices of the Supreme Court, the Presiding Justice and Associate Justices of the Court of Appeals, the Judges of first Instance and of all inferior courts were appointed by the Chairman of the Executive Commission, at first, and later, by the President of the Republic, of course, without confirmation by the Commission on Appointments under the Commonwealth Constitution. The Chief Justice and Associate Justices of the Supreme Court, the President and Associate Justices of the Court of Appeals, and the Judges of First Instance and of all inferior courts in the Commonwealth judicial system, had to swear to support and defend the Commonwealth Constitution, while this was impossible under the Japanese-sponsored government. In the Commonwealth judicial system, if a Justice or Judge should die or incapacitated to continue in the discharge of his official duties, his successor was appointed by the Commonwealth President with confirmation by the Commission on Appointments, and said successor had to swear to support and defend the Commonwealth Constitution; in the exotic judicial system implanted here by the Japanese, if a Justice or Judge should die or incapacitated, his successor would be appointed by the Japanese Commander in Chief, if the dead or incapacitated incumbent should be the Chief Justice of the Supreme Court, or otherwise, by the Chairman of the "Executive Commission" or the President of the "Republic", of course without confirmation by the Commission on Appointments of the Commonwealth Congress, and, of course, without the successor swearing to support and defend the Commonwealth Constitution. If, as we believe having conclusively shown, the Japanese-sponsored courts were not the same Commonwealth courts, the conclusion is unavoidable that any jurisdiction possessed by the former and any cases left pending therein, were not and could not be automatically transfered to the Commonwealth courts which we re-established under Executive Order No. 36. For the purpose, a special legislation was necessary. Executive Order No. 37, in my humble opinion, does not, as held by the majority, imply that the President recognized as valid the proceedings in all cases appealed to the Court of Appeals. Section 2 of that order simply provides that all cases which have been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final decision. The adverb "duly" would indicate that the President foresaw the possibility of appeals not having been duly taken. All cases appealed to the Court of Appeals before the war and the otherwise duly appealed, would come under the phrase "duly appealed" in this section of the Executive Order. But considering the determined and firm attitude of the Commonwealth Government towards those Japanese-

sponsored governments since the beginning, it would seem inconceivable that the President Osmea, in section 2 of Executive Order No. 37, intended to include therein appeals taken to the Japanese-sponsored Court of Appeals, or from the Japanesesponsored inferior courts. It should be remembered that in the Executive Order immediately preceeding and issued on the same date, the President speaks of reestablishing the courts as fast as provinces were liberated from the Japanese occupation. IV The question boils down to whether the Commonwealth Government, as now restored, is to be bound by the acts of either or both of those Japanesesponsored governments. In the last analysis, in deciding the question of validity or nullity of the proceedings involved herein, we are confronted with the necessity to decide whether the Court of first Instance of Manila and this Supreme Court, as re-established under the Commonwealth Constitution, and the entire Commonwealth Government, are to be bound by the acts of the said Japanese-sponsored court and government. To propound this question is, to my mind, to answer it most decidedly in the negative, not only upon the ground of the legal principles but also for the reasons of national dignity and international decency. To answer the question in the affirmative would be nothing short for legalizing the Japanese invasion and occupation of the Philippines. Indeed, it would be virtual submission to the dictation of an invader our people's just hatred of whom gave rise to the epic Philippine resistance movement, which has won the admiration of the entire civilized world. V Even considerations of policy or practical convenience militate against petitioner's contention. In this connection, the respondent judge, in his order of June 6, 1945, complained of, has the following to say: It is contended, however, that the judicial system implanted by the Philippine Executive Commission and the Republic was the same as that of the Commonwealth prior to Japanese occupation; that the laws administered and enforced by said courts during the existence of said regime were the same laws on the statute books of Commonwealth before Japanese occupation, and that even the judges who presided them were, in many instances, the same persons who held the position prior to the Japanese occupation. All this may be true, but other facts are just as stubborn and pitiless. One of them is that said courts were of a government alien to the Commonwealth Government. The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation, but they had become the laws and the Courts had become the

institutions-of Japan by adoption (U.S. vs. Reiter, 27 F. Case No. 16,146), as they became later on the laws and institution of the Philippine Executive Commission and the Republic of the Philippines. No amount of argument or legal fiction can obliterate this fact. Besides, I am of the opinion that the validity of the acts of the courts in the "judicial system implanted by the Philippine Executive Commission and the Republic "would not depend upon the laws that they "administered and enforced", but upon the authority by virtue of which they acted. If the members of this Court were to decide the instant case in strict accordance with the Constitution and the laws of the Commonwealth but not by the authority that they possess in their official capacity as the Supreme Court of the Philippines, but merely as lawyers, their decision would surely be null and void. And yet, I am firmly of opinion that whoever was the "judge" of the Japanese sponsored Court of First Instance of Manila who presided over the said court when the proceedings and processes in the dispute were had, in acting by virtue of the supposed authority which he was supposed to have received from that government, did so with no more legal power than if he had acted as a mere lawyer applying the same laws to the case. If duplication of work or effort, or even if confussion, should be alleged to possibly arise from a declaration of nullity or judicial proceedings had before those Japanesesponsored courts, it should suffice to answer that the party so complaining in voluntarily resorting to such courts should be prepared to assume the consequences of his voluntary act. On the other hand, his convenience should not be allowed to visit upon the majority of the inhabitants of this country, the dire consequences of a sweeping and wholesale validation of judicial proceedings in those courts. Let us set forth a few considerations apropos of this assertion. It is a fact of general knowledge that during the Japanese occupation of the Philippines, the overwhelming majority of our people and other resident inhabitants were literally afraid to go any place where there were Japanese sentries, soldiers or even civilians, and that these sentries were posted at the entrance into cities and towns and at government offices; that the feared Japanese "M. P.'s" or Kempeitai's" were a constant terror to them; and lastly, that the greater number who lived or had evacuated to places for from the Japanese, were found precisely in the cities and towns where the courts were located; and as a consequence, the great majority of the people were very strongly adverse to traveling any considerable distance from their homes and were, one might say, in constant hiding. Add to these circumstances, the fact of the practical absence of transportation facilities and the no less important fact of the economic structure having been so dislocated as to have impoverished the many in exchange for the enrichment of the few and we shall have a fair picture of the practical difficulties which the ordinary litigant would in those days have encountered in defending his rights against anyone of the favored few who would bring him to court. It should be easy to realize how hard it was for instances, to procure the attendance of witnesses, principally because of the fact that most of them were in hiding or, at least, afraid to enter the cities and towns, and also because of then generally difficult and abnormal conditions prevailing. Under such conditions, cases or denial of a party's day in court expected. Such denial might arise from many a cause. It might be party's fear to appear before the court because in doing so, he would have had to get near the feared Japanese. It might be because he did not recognize any legal

authority in that court, or it might be his down-right repugnance of the hated enemy. And I dare say that among such people would be found more than seventeen million Filipinos. These are but a few of countless cause. So that if some form of validation of such judicial proceedings were to be attempted, all necessary safeguards should be provided to avoid that in any particular case the validation should violate any litigant's constitutional right to his day in court, within the full meaning of the phrase, or any other constitutional or statutory right of his. More people, I am afraid, would be prejudiced than would be benefited by a wholesale validation of said proceedings. Much concern has been shown for the possible confusion which might result from a decision declaring null and void the acts processes of the Japanese-sponsored governments in the Philippines. I think, this aspect of the question has been unduly stressed. The situation is not without remedy, but the remedy lies with the legislature and not with the courts. As the courts cannot create a new or special jurisdiction for themselves, which is a legislative function, and as the situation demands such new or special jurisdiction, let the legislature act in the premises. For instance, the Congress may enact a law conferring a special jurisdiction upon the courts of its selection, whereby said courts may, after hearing all the parties interested, and taking all the necessary safeguards, so that, a party's day in court or other constitutional or statutory right under the Commonwealth Government should not be prejudiced by any of said acts, processes or proceedings, particullarly, those in Japanese-sponsored courts, and subject to such other conditions as the special law may provide, validate the corresponding acts, processes or proceedings. This, to my mind, would be more conducive to a maximum of benefit and a minimum of prejudice to the inhabitants of this country, rather than the procedure favored by the majority. Finally, let us not equalize the conditions then prevailing in Manila to that prevailing in the provinces, where the greater number of the people where then living outside the towns, in the farms and the hills. These people constitute the great majority of the eighteen million Filipinos. To them the semblance of an administration of justice which Japanese allowed, was practically unknown. But they constituted the majority of loyal citizens to whom President Roosevelt's message of October 23, 1943 refers. They the majority of our people had an unshaken faith in the arrival of American aid here and the final triumph of the Allied cause. They were willing to wait for the restoration of their rightful government, with its courts and other institutions, for the settlement of their differences. May in their common hardship and sufferings under yoke of foreign oppression, they had not much time to think of such differences, if they did not utterly forget them. Their undoubted hatred of the invader was enough to keep them away from the judicial system that said invader allowed to have. Those who voluntarily went to the courts in those tragic days belong to the small minority. As to the public order why! any public order which then existed was not due to the courts or other departments of the puppet government. It was maintained at the point of the bayonet by the Japanese army, and in their own unique fashion.

Footnotes
1

Resolution on motion for reconsideration, see p. 371, post.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,respondents. Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance. City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. Dionisio Reyes as Amicus Curiae. Marcial G. Mendiola as Amicus Curiae. Emiliano R. Navarro as Amicus Curiae. LABRADOR, J.: I. The case and issue, in general This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment? II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from 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 interest of national economic survival; (2) the Act has only one subject embraced in the

title; (3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of statutory origin. IV. Preliminary consideration of legal principles involved a. The police power. There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and the issue accordingly resolved. It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it 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 Year and Retailers Nationality 194 1: Filipin o .......... Chines e ........... Others ........... . 194 7: Filipin o .......... Chines e ........... Others ........... 194 (Censu 8: s) 111,107 208,658,9 46 13,774 106,156,2 18 354 8,761,260 65.05 279,583,3 33 33.56 205,701,1 34 .49 4,927,168 57.03 106,671 200,323,1 38 15,356 118,348,6 92 1,646 40,187,09 0 55.82 174,181,9 24 32.98 148,813,2 39 11.20 13,630,23 9 51.74 No.Establishme nts Pesos Per cent Distributi on Gross Sales Pesos Per cent Distributi on

44.21

4.05

41.96

1.01

Filipin o .......... Chines e .......... Others .......... 194 9: Filipin o .......... Chines e .......... Others .......... 195 1: Filipin o ......... Chines e .......... Others ..........

113,631 213,342,2 64 12,087 93,155,45 9 422 10,514,67 5

67.30 467,161,6 67 29.38 294,894,2 27 3.32 9,995,402

60.51

38.20

1.29

113,659 213,451,6 02 16,248 125,223,3 36 486 12,056,36 5

60.89 462,532,9 01 35.72 392,414,8 75 3.39 10,078,36 4

53.47

45.36

1.17

119,352 224,053,6 20 17,429 134,325,3 03 347 8,614,025

61.09 466,058,0 52 36.60 404,481,3 84 2.31 7,645,327

53.07

46.06

87

AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT Year and Retailer's Nationality 1941: Filipino ............................................. 1,878 1,633 Item Assets (Pesos) Gross Sales (Pesos)

Chinese .............................................. Others ............................................... 1947: Filipino ............................................. Chinese ........................................... Others .............................................. 1948: (Census) Filipino ............................................. Chinese ............................................. Others .............................................. 1949: Filipino ............................................. Chinese .............................................. Others .............................................. 1951: Filipino ............................................. Chinese ............................................. Others ...............................................

7,707 24,415

9,691 8,281

1,878

2,516

7,707 14,934 24,749 13,919

1,878

4,111

7,707 24,398 24,916 23,686

1,878

4,069

7,707 24,152 24,807 20,737

1,877

3,905

7,707 33,207 24,824 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 1819 of Answer.) The above statistics do not include corporations and partnerships, while the figures on Filipino 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 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 not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much 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 respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply. 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 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 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 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 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 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 of the Constitution, he says: But there has been a general feeling that alien dominance over the economic life of the country is not 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 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 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) 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 law2 and that no person shall be denied the equal protection of the laws3 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.

Footnotes
1 2 3 4

Section 76, Act No. 1459.. Section 1 (1), Article III, of the Constitution.. Ibid. Section 5, Article XIII, of the Constitution.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner, vs. RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents. Ramon A. Gonzales in his own behalf as petitioner. Office of the Solicitor General and Estanislao Fernandez for respondents. CONCEPCION, J.: This is an original action for prohibition with preliminary injunction. It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein1 for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent. Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of preliminary injunction was set for

hearing at which both parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their memoranda. I. Sufficiency of petitioner's interest. Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines who wish to dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said funds. II. Exhaustion of administrative remedies. Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies available to him before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore, untenable. III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commanderin-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any special authority". Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on which our view need not be expressed we are unanimously of the opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation orgovernment agency to import rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the President of the Philippines may authorize the importation of these commodities through any government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from importing rice and corn. Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government agencies and/or agents. The applicability of said laws even to importations by the Government as such, becomes more apparent when we consider that: 1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines" and, hence, by or on behalf of the Government of the Philippines; 2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private parties upon payment of the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject to the additional penalty specified therein. A public official is an officer of the Government itself, as distinguished from officers or employees of instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made by the very government is patent. Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the Government." Pursuant to Section 1 thereof: The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of the municipal and provincial governments and the Government of the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices, agencies, branches, and bodies of any description, including governmentowned companies, authorized to requisition, purchase, or contract or make disbursements for articles, materials, and supplies for public use, public buildings, or public works shall give preference to materials ... produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.) Under this provision, in all purchases by the Government, including those made by and/or for the armed forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452. The attempt to justify the proposed importation by invoking reasons of national security predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the local

production of said commodities constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to discourage our farmers from engaging in the production of rice. Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by the administration throughout the country under the proper dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.) Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws. Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he has placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it would keep us perpetually under martial law. It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is said. If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for stockpile of the Army not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of law. And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in the compliance with said Acts. It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions, which have not been, and should be complied with. IV. The contracts with Vietnam and Burma It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense. The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted

prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States. As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposed importation which has not been consummated as yet is legally feasible. Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied with without importing the

commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws. V. The writ of preliminary injunction. The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted. WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered. Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur. Paredes and Regala, JJ., concur in the result.

Separate Opinions BAUTISTA ANGELO, J., concurring: Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person, association, corporation or government agency to import rice and corn into any point in the Philippines. The exception is if there is an existing or imminent shortage of such commodity of much gravity as to constitute national emergency in which case an importation may be authorized by the President when so certified by the National Economic Council. However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice and corn canonly be made by private parties thereby prohibiting from doing so the Rice and Corn Administration or any other government agency. Republic Act 3452 does not expressly repeal Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of prohibiting completely the government from importing rice and corn into the Philippines? My answer is in the negative. Since this Act does not in any manner provide for the importation of rice and corn in case of national emergency, the provision of

the former law on that matter should stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice and Corn Administration, or any other government agency, may therefore still import rice and corn into the Philippines as provided in Republic Act 2207 if there is a declared national emergency. The next question that arises is: Can the government authorize the importation of rice and corn regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the Philippine Army as a military precautionary measure for military stockpile? Respondents answer this question in the affirmative. They advance the argument that it is the President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of the country as well as to the fulfillment of our international commitments in Southeast Asia in the event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an essential requirement of defense preparation in view of the limited local supply and the probable disruption of trade and commerce with outside countries in the event of armed hostilities, and this military precautionary measure is necessary because of the unsettled conditions in the Southeast Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence Service of the Military Department of our Government. This advocacy, they contend, finds support in the national defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1), which provides: (a) The preservation of the State is the obligation of every citizen. The security of the Philippines and the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times.(Emphasis supplied) Indeed, I find in that declaration of policy that the security of the Philippines and its freedom constitutes the core of the preservation of our State which is the basic duty of every citizen and that to secure which it is enjoined that the President employ all the resources at his command. But over and above all that

power and duty, fundamental as they may seem, there is the injunction that the civil authority shall always be supreme. This injunction can only mean that while all precautions should be taken to insure the security and preservation of the State and to this effect the employment of all resources may be resorted to, the action must always be taken within the framework of the civil authority. Military authority should be harmonized and coordinated with civil authority, the only exception being when the law clearly ordains otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor of military action concerning importation of rice and corn. An exception must be strictly construed. A distinction is made between the government and government agency in an attempt to take the former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of the Philippines under the Revised Administrative Code refers to that entity through which the functions of government are exercised, including the various arms through which political authority is made effective whether they be provincial, municipal or other form of local government, whereas a government instrumentality refers to corporations owned or controlled by the government to promote certain aspects of the economic life of our people. A government agency, therefore, must necessarily refer to the government itself of the Republic, as distinguished from any government instrumentality which has a personality distinct and separate from it (Section 2). The important point to determine, however, is whether we should enjoin respondents from carrying out the importation of the rice which according to the record has been authorized to be imported on government to government level, it appearing that the arrangement to this effect has already been concluded, the only thing lacking being its implementation. This is evident from the manifestation submitted by the Solicitor General wherein it appears that the contract for the purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our government and the governments of Vietnam and Burma, respectively. If it is true that, our government has already made a formal commitment with the selling countries there arises the question as to whether the act can still be impeded at this stage of the negotiations. Though on this score there is a divergence of opinion, it is gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had the writ been issued, our government would have been placed in a predicament where, as a necessary consequence, it would have to repudiate a duly formalized agreement to its great embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the Court.

BARRERA, J., concurring: Because of possible complications that might be aggravated by misrepresentation of the true nature and scope of the case before this Court, it is well to restate as clearly as possible, the real and only issue presented by the respondents representing the government. From the answer filed by the Solicitor General, in behalf of respondents, we quote: The importation of the rice in question by the Armed Forces of the Philippines is for military stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief and as a military precautionary measure in view the worsening situation in Laos and Vietnam and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2; emphasis supplied.) During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise reiterated the imported rice was for military stockpiling, and which he admitted that some of it went to the Rice and Corn Administration, he emphasized again and again that rice was not intended for the RCA for distribution to people, as there was no shortage of rice for that purpose but it was only exchanged for palay because this could better preserved. From the memorandum filed thereafter by the Solicits General, again the claim was made: We respectfully reiterate the arguments in our answer dated October 4, 1963 that the importation of rice sought be enjoined in this petition is in the exercise of the authority vested in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a measure of military preparedness demanded by a real and actual threat of emergency in the South East Asian countries. (p. 1, Emphasis supplied.) xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show the necessity for the stockpiling of rice for army purposes, which is the very reason for the importation. xxx xxx xxx

As it is, the importation in question is being made by the Republic of the Philippines for its own use, and the rice is not supposed to be poured into

the open market as to affect the price to be paid by the public. (p. 4, Emphasis supplied.) xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that effect, does not include in its prohibition importation by the Government of rice for its own use and not for the consuming public, regardless of whether there is or there is no emergency. (p. 5, Emphasis supplied.) From the above, it not only appears but is evident that the respondents were not concerned with the present rice situation confronting the consuming public, but were solely and exclusively after the stockpiling of rice for thefuture use of the army. The issue, therefore, in which the Government was interested is not whether rice is imported to give the people a bigger or greater supply to maintain the price at P.80 per ganta for, to quote again their contention: "the rice is not supposed to be poured into the open market to affect the price to be paid by the public, as it is not for the consuming public, regardless of whether there is or there is no emergency", but whether rice can legally be imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this Court can not accept the contention of the respondents that this importation is beyond and outside the operation of these statutes. I can only emphasize that I see in the theory advanced by the Solicitor General a dangerous trend that because the policies enunciated in the cited laws are for the protection of the producers and the consumers, the army is removed from their application. To adopt this theory is to proclaim the existence in the Philippines of three economic groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is more portentous is the effect to equate the army with the Government itself. Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged threat of emergency in the Southeast Asian countries. But the existence of this supposed threat was unilaterally determined by the Department of National Defense alone. We recall that there exists a body called the National Security Council in which are represented the Executive as well as the Legislative department. In it sit not only members of the party in power but of the opposition as well. To our knowledge, this is the highest consultative body which deliberates precisely in times of emergency threatening to affect the security of the state. The democratic composition of this council is to guarantee that its deliberations would be non-partisan and only the best interests of the nation will be considered. Being a deliberative body, it insures against precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any change or development in the political climate in any

region of the world is apt to be taken as an excuse for the military to conjure up a crisis or emergency and thereupon attempt to override our laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of precautionary mobilization measure avowedly in the interest of the security of the state. One need not, be too imaginative to perceive a hint of this in the present case. The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult and delicate task it had to discharge. Its position is liable to be exploited by some for their own purposes by claiming and making it appear that the Court is unmindful of the plight of our people during these days of hardship; that it preferred to give substance to the "niceties of the law than heed the needs of the people. Our answer is that the Court was left no alternative. It had, in compliance with its duty, to decide the case upon the facts presented to it. The respondents, representing the administration, steadfastly maintained and insisted that there is no rice shortage; that the imported rice is not for the consuming public and is not supposed to be placed in the open market to affect the price to be paid by the public; that it is solely for stockpiling of the army for future use as a measure of mobilization in the face of what the Department of National Defense unilaterally deemed a threatened armed conflict in Southeast Asia. Confronted with these facts upon, which the Government has built and rested its case, we have searched in vain for legal authority or cogent reasons to justify this importation made admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452. I say admittedly, because respondents never as much as pretended that the importation fulfills the conditions specified in these laws, but limited themselves to the contention, which is their sole defense that this importation does not fall within the scope of said laws. In our view, however, the laws are clear. The laws are comprehensive and their application does not admit of any exception. The laws are adequate. Compliance therewith is not difficult, much less impossible. The avowed emergency, if at all, is not urgently immediate. In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under the Constitution. It has to decide, when called upon to do so in an appropriate proceeding, all cases in which the constitutionality or validity of any treaty, law, ordinance, executive order or regulation is in question. We can not elude this duty. To do so would be culpable dereliction on our part. While we sympathize with the public that might be adversely affected as a result of this decision yet our sympathy does not authorize us to sanction an act contrary to applicable laws. The fault lies with those who stubbornly contended and represented before this Court that there is no rice shortage, that the imported rice is not intended for the consuming public, but for stockpiling of the army. And, if as now claimed before the public, contrary to the Government's stand in this case, that there is need for imported rice to stave off hunger, our legislature has provided for such a situation. As already stated, the laws are adequate. The importation of rice under the conditions set

forth in the laws may be authorized not only where there is an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the situation is available, if only those who have the duty to execute the laws perform their duty. If there is really need for the importation of rice, who adopt some dubious means which necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under the rule of law. Adoption as a government policy of the theory of the end justifies the means brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of freedom. For these reasons, I concur in the decision of the Court.

Separate Opinions Footnotes The Secretary of National Defense, the Auditor General, the Secretary of Commerce and Industry, and the Secretary Justice.
1 2 3

275 hectares.

Tapales vs. The President and the Board of Regents of the U.P., L17523, March 30, 1963. Mangubat vs. Osmea, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078, May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.
4

Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L15982, May 31, 1963.
5

In the present case, respondents allege in their answer that "the importation ... in question ... is authorized by the President.
6

Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000, September 25, 1959.
7

Which provides that the national defense policy of the Philippines shall be follows:
8

(a) The preservation of the state is the obligation of every citizen. The security of the Philippines and the freedom, independence and

perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times. xxx
9

xxx

xxx

In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act.
10 11

The Constitution and What It Means Today, pp. 95-96.

The Power of the President as Commander-in-Chief is primarily that of military command in wartime, and as such includes, as against the persons and property of enemies of the United States encountered within the theater of military operations, all the powers allowed a military commander in such cases by the Law of Nations. President Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective within the theater of military operations while the war lasted, but no longer. (p. 93, Emphasis supplied.) From an early date the Commander-in-Chief power came to be merged with the President's duty to take care that the laws be faithfully executed. So, while in using military force against unlawful combinations too strong to be dealt with through the ordinary processes of law the President acts by authorization of statute, his powers are still those of Commander-in-Chief. ...
12

Under "preventive martial law", so-called because it authorizes "preventive" arrests and detentions, the military acts as an adjunct of the civil authorities but not necessarily subject to their orders. It may be established whenever the executive organ, State or national, deems it to be necessary for the restoration of good order. The concept, being of judicial origin, is of course for judicial application, and ultimately for application by the Supreme Court, in enforcement of the due process

clauses. (See, also, Section III of this Article, and Article IV, Section IV.) (Pp. 95-96, Emphasis supplied.)

In RE: Garcia 2

SCRA

984

FACTS: Arturo Garcia applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he asserts that he is a Filipino citizen born in Bacolod City, of Filipino parentage. He had taken and finished the course of Bachillerato Superior in Spain and was approved, selected and qualified by the Insitututo de Cervantes for admission to the Central University of Madrid where he studied and finished the law course, graduating there as Licenciado en derecho. Thereafter he was allowed to practice the law profession in Spain. He claims that under the provisions of the Treaty on Academic Degrees and the Exercise of Profession between the Republic of the Philippines and the Spanish State, he is entitled to the practice the law profession in the Philippines without submitting to the required bar examinations. ISSUE: Whether treaty can modify regulations governing admission to the Philippine Bar RULING: The Court resolved to deny the petition. The provision of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state cannot be invoked by the applicant. Said Treaty was intended to govern Filipino citizens desiring to practice the legal in Spain, and the citizens of Spain desiring to practice the legal profession in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines. The privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting state in whose territory it is desired to exercise the legal profession. The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish state could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for reason that the Executive Department may not enroach upon the consitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, and the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.

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 36volume 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 Agreement on Tariffs and Trade 1994 General

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: Annex 1C: Rights General Agreement on Trade in Services and Annexes Agreement on Trade-Related Aspects of Intellectual Property 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 [17] the judiciary is the final arbiter on the question of whether or Concepcion, 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 Article XII NATIONAL ECONOMY AND PATRIMONY xx xx 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 TradeRelated 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 selfexecuting 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 selfexecuting 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. xxx

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 x x x x xxx x x

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 isper 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 tradecommensurate 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 subsidyby 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 twothirds 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 clai m 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 selfdestruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in the new millennium. Let the people, through their duly authorized elected officers, make their free choice. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur. Padilla, and Vitug, JJ., in the result.

In Annex A of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996, Philippine Ambassador to the United Nations, World Trade Organization and other international organizations Lilia R. Bautista (hereafter referred to as Bautista Paper) submitted a 46-year Chronology of GATT as follows:
[1]

1947

The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and Trade (GATT) was signed by 23 nations at the Palais des Nations in Geneva. The Agreement contained tariff concessions agreed to in the first multilateral trade negotiations and a set of rules designed to prevent these concessions from being frustrated by restrictive trade measures.

The 23 founding contracting parties were members of the Preparatory Committee established by the United Nations Economic and Social Council in 1946 to draft the charter of the International Trade Organization (ITO). The ITO was envisaged as the final leg of a triad of post-War economic agencies (the other two were the International Monetary Fund and the International Bank for Reconstruction - later the World Bank). In parallel with this task, the Committee members decided to negotiate tariff concessions among themselves. From April to October 1947, the participants completed some 123 negotiations and established 20 schedules containing the tariff reductions and bindings which became an integral part of GATT. These schedules resulting from the first Round covered some 45,000 tariff concessions and about $10 billion in trade. GATT was conceived as an interim measure that put into effect the commercial-policy provisions of the ITO. In November, delegations from 56 countries met in Havana, Cuba, to consider the ITO draft as a whole. After long and difficult negotiations, some 53 countries signed the Final Act authenticating the text of the Havana Charter in March 1948. There was no commitment, however, from governments to ratification and, in the end, the ITO was stillborn, leaving GATT as the only international instrument governing the conduct of world trade. 1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 founding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile, China,

Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingdom and United States. The first Session of the contracting parties was held from February to March in Havana, Cuba. The secretariat of the Interim Commission for the ITO, which served as the ad hoc secretariat of GATT, move from lake Placid, New York, to Geneva. The Contracting Parties held their second session in Geneva from August to September. 1949 Second Round at Annecy. During the second Round of trade negotiations, held from April to August at Annecy, France, the contracting parties exchange some 5,000 tariff concession. At their third Session, they also dealt with the accession of ten more countries. Third Round At Torquay. From September 1950 to April 1951, the contracting parties exchange some 8,700 tariff concessions in the English town, yielding tariff reduction of about 25 per cent in relation to the 1948 level. Four more countries acceded to GATT. During the fifth Session of the Contracting Parties, the United States indicated that the ITO Charter would not be re-submitted to the US congress; this, in effect, meant that ITO would not come into operation. Fourth Round at Geneva. The fourth Round was completed in May and produce some $2.5 billion worth of tariff reductions. At the beginning of the year, the GATT commercial policy course for officials of developing countries was inaugurated. The Haberler Report. GATT published Trends in International Trade in October. Known as the "Haberler Report" in honour of Professor Gottfried Haberler, the chairman of the panel of imminent economist, it provided initial guidelines for the work of GATT. The Contracting Parties at their 13th Sessions, attended by Ministers, subsequently established 3 committees in GATT: Committee I to convene a further tariff negotiating conference; Committee II To review the agricultural policies of member governments and Committee III to tackle the problems facing developing countries in their trade. The establishment of the European Economic Community during the previous year also demanded large scale tariff negotiation under Article XXIV 6 of the General Agreement. The Dillon Round. The fifth Round opened in September and was divided into two phases: the first was concerned

1950

1956

1958

1960

with EEC members states for the creation of a single schedule of concessions for the Community based on its Common External Tariff; and the second was a further general round of tariff negotiations. Named in honor of US Under-Secretary of State Douglas Dillon who proposed the negotiations, the Round was concluded in July 1962 and resulted in about 4,400 tariff concessions covering $4.9 billion of trade. 1961 The Short-Term Arrangement covering cotton textiles was agreed as an exception to the GATT rules. The arrangement permitted the negotiation of quota restrictions affecting the exports of cotton-producing countries. In 1962 the "Short Term " Arrangement become the "Long term" Arrangement, lasting until 1974 when the Multifibre Arrangement entered into force. The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations Committee formally opened the Kennedy Round in May. In June 1967, the Round's Final Act was signed by some 50 participating countries which together accounted for 75 per cent of world trade. For the first time, negotiation departed from product-by-product approach used in the previous Rounds to an across-the-board or linear method of cutting tariffs for industrial goods. The working hypothesis of a 50 per cent target cut in tariff levels was achieved in many areas. Concessions covered an estimated total value of trade of about $40 billion. Separate agreements were reached on grains, chemical products and a Code on Anti-Dumping. A New Chapter. The early 1960s marked the accession to the General Agreement of many newly-independent developing countries. In February, the Contracting Parties, meeting in a special session, adopted the text of Part IV on Trade and Development. The additional chapter to the GATT required developed countries to accord high priority to the reduction of trade barriers to products of developing countries. A committee on Trade and Development was established to oversee the functioning of the new GATT provisions. In the preceding year, GATT had established the International Trade Center (ITC) to help developing countries in trade promotion and identification of potential markets. Since 1968, the ITC had been jointly operated by GATT and the UN Conference on Trade and Development (UNCTAD).

1964

1965

1973

The Tokyo Round. The seventh Round was launched by Ministers in September at the Japanese capital. Some 99 countries participated in negotiating a comprehensive body of agreements covering both tariff and non-tariff matters. At the end of the Round in November 1979, participants exchange tariff reduction and bindings which covered more than $300 billion of trade. As a result of these cuts, the weighted average tariff on manufactured goods in the world's nine major Industrial Markets declined from 7.0 to 4.7 per cent. Agreements were reached in the following areas; subsidies and countervailing measures, technical barriers to trade, import licensing procedures, government procurement, customs valuation, a revised anti-dumping code, trade in bovine meat, trade in daily products and trade in civil aircraft. The first concrete result of the Round was the reduction of import duties and other trade barriers by industrial countries on tropical products exported by developing countries. On 1 January 1974, the Arrangement Regarding International Trade in textiles, otherwise known as the Multifibre Arrangement (MFA), entered into force. Its superseded the arrangement that had been governing trade in cotton textiles since 1961. The MFA seeks to promote the expansion and progressive liberalization of trade in textile product while at the same time avoiding disruptive effects in individual markets in lines of production. The MFA was extended in 1978, 1982, 1986, 1991 and 1992. MFA members account for most of the world exports of textiles and clothing which in 1986 amounted to US$128 billion. Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT Ministers in November at Geneva reaffirmed the validity of GATT rules for the conduct of international trade and committed themselves to combating protectionist pressures. They also established a wideranging work programme for the GATT which was to laid down the ground work for a new Round. 1986 The Uruguay Round. The GATT Trade Ministers meeting at Punta del Este, Uruguay, launched the eighth Round of Trade Negotiations on 20 September. The Punta del Este, declarations, while representing a single political undertaking, was divided into two section. The First covered negotiations on Trade in goods and the second initiated negotiation on trade in services. In the area of trade in goods, the Ministers committed themselves to a "standstill"

1974

1982

on new trade measures inconsistent with their GATT obligations and to a "rollback" programme aimed at phasing out existing inconsistent measures. Envisaged to last four years, negotiations started in early February 1987 in the following areas: tariffs, non-tariff measures, tropical products, natural resource-based products, textiles and clothing, agriculture, subsidies, safeguards, trade-related aspects of intellectual property rights including trade in counterfeit goods, in trade- related investment measures. The work of other groups included a review of GATT articles, the GATT dispute-settlement procedure, the Tokyo Round agreements, as well as functioning of the GATT system as a whole. 1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the substantive and institutional changes negotiated in the Uruguay Round. GATT 1994 is an integral part of the World Trade Organization established on 1 January 1995. It is agreed that there be a one year transition period during which certain GATT 1947 bodies and commitments would co-exist with those of the World Trade Organization."

[2]

The Final Act was signed by representatives of 125 entities, namely Algeria, Angola, Antigua and Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain, Peoples Republic of Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica, Republic of Cote dIvoire, Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth of Dominica, Dominican Republic, Arab Republic of Egypt, El Salvador, European Communities, Republic of Fiji, Finland, French Republic, Gabonese Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of Israel, Italian Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho, Principality of Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar, Republic of Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic Republic of Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco, Republic of Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands, New Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway, Islamic Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of Qatar, Romania, Rwandese Republic, Saint Kitts and Nevis,

Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of Spain, Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland, Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand, Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America, Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
[3]

11 August 1994

The Honorable Members Senate Through Senate President Edgardo Angara Manila Ladies and Gentlemen: I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 15 April 1994 in Marrakesh, Morocco. The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the interrelationship between trade and economic policies affecting growth and development. The Final Act will improve Philippine access to foreign markets, especially its major trading partners through the reduction of tariffs on its exports particularly agricultural and industrial products. These concessions may be availed of by the Philippines, only if it is a member of the World Trade Organization. By GATT estimates, the Philippines can acquire additional export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the normal increase in exports that the Philippines may experience. The Final Act will also open up new opportunities for the services sector in such areas as the movement of personnel, (e.g. professional services and construction services), cross-border supply (e.g. computer-related services), consumption abroad (e.g. tourism, convention services, etc.) and commercial presence. The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also benefit Philippine exporters by reducing the costs and uncertainty associated with exporting while at the

same time providing a means for domestic industries to safeguard themselves against unfair imports. Likewise, the provision of adequate protection for intellectual property rights is expected to attract more investments into the country and to make it less vulnerable to unilateral actions by its trading partners (e.g. Sec. 301 of the United States Omnibus Trade Law). In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed. Very truly yours, (SGD.) FIDEL V. RAMOS
[4]

11 August 1994

The Honorable Members Senate Through Senate President Edgardo Angara Manila Ladies and Gentlemen: I have the honor to forward herewith an authenticated copy of the Uruguay Round Final Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines on 13 April 1994 in Marrakech (sic), Morocco. Members of the trade negotiations committee, which included the Philippines, agreed that the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services embody the results of their negotiations and form an integral part of the Uruguay Round Final Act. By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro, agreed: (a) To submit the Agreement Establishing the World Trade Organization to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution; and (b) To adopt the Ministerial Declarations and Decisions.

The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen the interrelationship between trade and economic policies affecting growth and development. The Final Act will improve Philippine access to foreign markets, especially its major trading partners through the reduction of tariffs on its exports particularly agricultural and industrial products. These concessions may be availed of by the Philippines, only if it is a member of the World Trade Organization. By GATT estimates, the Philippines can acquire additional export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of the normal increase in the exports that the Philippines may experience. The Final Act will also open up new opportunities for the services sector in such areas as the movement of personnel, (e.g., professional services and construction services), cross-border supply (e.g., computerrelated services), consumption abroad (e.g., tourism, convention services, etc.) and commercial presence. The clarified and improved rules and disciplines on anti-dumping and countervailing measures will also benefit Philippine exporters by reducing the costs and uncertainty associated with exporting while at the same time providing a means for domestic industries to safeguard themselves against unfair imports. Likewise, the provision of adequate protection for intellectual property rights is expected to attract more investments into the country and to make it a less vulnerable to unilateral actions by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law). In view of the foregoing, 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, as embodied in the Uruguay Round Final Act and forming and integral part thereof are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is enclosed. Very truly yours, (SGD.) FIDEL V. RAMOS
[5]

December 9, 1994

HON. EDGARDO J. ANGARA Senate President Senate, Manila

Dear Senate President Angara: Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to the necessity of the immediate adoption of P.S. 1083, entitled: CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION to meet a public emergency consisting of the need for immediate membership in the WTO in order to assure the benefits to the Philippine economy arising from such membership. Very truly yours, (SGD.) FIDEL V. RAMOS
[6]

Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed Senate Resolution No. 97. It was prepared by the Committee of the Whole on the General Agreement on Tariffs and Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; see Annex C, Compliance of petitioners dated January 28, 1997. The Philippines is thus considered an original or founding member of WTO, which as of July 26, 1996 had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili, Colombia, Costa Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland, France, Gabon, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti, Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar, Namibia, Netherlands -- for the Kingdom in Europe and for the Netherlands Antilles, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See Annex A, Bautista Paper, infra. Page 6; rollo, p. 261.

[7]

[8]

[9]

In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a Memorandum (the Bautista Paper) consisting of 56 pages excluding annexes. This is the same document mentioned in footnote no. 1. Memorandum for Respondents, p. 13; rollo, p. 268. Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a discussion on locus standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in Tatad vs. Garcia, Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA 386, 414, December 23, 1994. Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in Bondoc vs. Pineda, 201 SCRA 792, 795, September 26, 1991. Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993. See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the scope of political question. Section 1, Article VIII, (par. 2). In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant? Senator Arturo Tolentino concedes that this new provision gives the Supreme Court a duty to intrude into the jurisdiction of the Congress or the President. I Record of the Constitutional Commission 436. Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989. Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206. Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade Negotiations, Vol. 1, p. 146. Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is identical with that in the 1987s. Philippine Political Law, 1962 Ed., p. 116. Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In the very recent case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it was held that A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. 246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R. No. 115455 and consolidated cases, August 25, 1995. 197 SCRA 52, 68, May 14, 1991. 224 SCRA 792, 817, July 30, 1993.

[10] [11]

[12]

[13] [14]

[15] [16]

[17] [18] [19] [20]

[21]

[22] [23]

[24]

[25] [26]

[27] [28] [29] [30] [31] [32] [33] [34]

Sec. 10, Article XII. Sec. 12, Article XII. Sec. 19, Art. II. Sec. 13, Art. XII. G.R. No. 122156, February 3, 1997, pp. 13-14. Sec. 1, Art. XII. Bautista Paper, p. 19. Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade Negotiations. Underscoring supplied. Sec. - 19, Article II, Constitution. III Records of the Constitutional Commission 252. Sec. 13, Article XII, Constitution. Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own article entitled, A Quintessential Constitution earlier published in the San Beda Law Journal, April 1972; underscoring supplied. Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol. 1, Uruguay Round of Multilateral Trade Negotiations. Memorandum for the Petitioners, p. 29; rollo, p. 219. Sec. 24, Article VI, Constitution. Subsection (2), Sec. 28, Article, VI Constitution. Sec. 2, Article II, Constitution. Cruz, Philippine Political Law, 1995 Ed., p. 55. Salonga and Yap, op cit 305. Salonga, op. cit., p. 287. Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.

[35] [36] [37] [38]

[39]

[40] [41] [42] [43] [44] [45] [46] [47]

Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27, 1969.
47-A [48]

Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995, cited on p. 55-56, Bautista Paper. Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445. Item 5, Sec. 5, Article VIII, Constitution. Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

[49] [50] [51]

[52] [53] [54] [55]

Bautista Paper, p. 13. See footnote 3 of the text of this letter. Salonga and Yap, op cit., pp. 289-290. The full text, without the signatures, of the Final Act is as follows:

Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations 1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations, representatives of the governments and of the European Communities, members of the Trade Negotiations Committee, agree that the Agreement Establishing the World Trade Organization (referred to in the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services, as annexed hereto, embody the results of their negotiations and form an integral part of this Final Act. 2. By signing to the present Final Act, the representatives agree. (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. 3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as participants) with a view to its entry into force by 1 January 1995, or as early as possible thereafter. Not later than late 1994, Ministers will meet, in accordance with the final paragraph of the Punta del Este Ministerial Declarations, to decide on the international implementation of the results, including the timing of their entry into force. 4. The representatives agree that the WTO Agreement shall be opened for acceptance as a whole, by signature or otherwise, by all participants pursuant to Article XIV thereof. The acceptance and entry into force of a Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement shall be governed by the provisions of that Plurilateral Trade Agreement. 5. Before accepting the WTO Agreement, participants which are not contracting parties to the General Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the General Agreement and become contracting parties thereto. For participants which are not contracting parties to the general Agreement as of the date of the Final Act, the Schedules are not definitive and shall be subsequently completed for the purpose of their accession to the General Agreement and acceptance of the WTO Agreement. 6. This Final Act and the Texts annexed hereto shall be deposited with the Director-General to the CONTRACTING PARTIES to the General

Agreement on Tariffs and Trade who shall promptly furnish to each participant a certified copy thereof. DONE at Marrakesh this fifteenth day of April One thousand nine hundred and ninety-four, in a single copy, in the English, French and Spanish languages, each text being authentic."
[56] [57] [58] [59] [60] [61] [62]

Bautista Paper, p. 16. Bautista Paper, p. 16. Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138. See footnote 3 for complete text. Taken from pp. 63-85, Respondent Memorandum. Zarate vs. Olegario, G.R. No. 90655, October 7, 1996. San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991; Commissioner of Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20, 1991; Simon vs. Civil Service Commission, 215 SCRA 410, November 5, 1992; Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992. Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990. Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Readers Digest, December 1996 issue, p. 28.

[63] [64]

[65]

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 91332 July 16, 1993 PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC REUNIES, S.A.,petitioners vs. THE COURT OF APPEALS AND FORTUNE TOBACCO CORPORATION, respondents. Quasha, Asperilla, Ancheta, Pea & Nolasco Law Office for petitioners. Teresita Gandionco-Oledan for private respondent.

MELO, J.: In the petition before us, petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., and Fabriques of Tabac Reunies, S.A., are ascribing whimsical exercise of the faculty conferred upon magistrates by Section 6, Rule 58 of the Revised Rules of Court when respondent Court of Appeals lifted the writ of preliminary injunction it earlier had issued against Fortune Tobacco Corporation, herein private respondent, from manufacturing and selling "MARK" cigarettes in the local market. Banking on the thesis that petitioners' respective symbols "MARK VII", "MARK TEN", and "LARK", also for cigarettes, must be protected against unauthorized appropriation, petitioners twice solicited the ancillary writ in the course the main suit for infringement but the court of origin was unpersuaded. Before we proceed to the generative facts of the case at bar, it must be emphasized that resolution of the issue on the propriety of lifting the writ of preliminary injunction should not be construed as a prejudgment of the suit below. Aware of the fact that the discussion we are about to enter into involves a mere interlocutory order, a discourse on the aspect infringement must thus be avoided. With these caveat, we shall now shift our attention to the events which spawned the controversy.

As averred in the initial pleading, Philip Morris, Incorporated is a corporation organized under the laws of the State of Virginia, United States of America, and does business at 100 Park Avenue, New York, New York, United States of America. The two other plaintiff foreign corporations, which are wholly-owned subsidiaries of Philip Morris, Inc., are similarly not doing business in the Philippines but are suing on an isolated transaction. As registered owners "MARK VII", "MARK TEN", and "LARK" per certificates of registration issued by the Philippine Patent Office on April 26, 1973, May 28, 1964, and March 25, 1964, plaintiffs-petitioners asserted that defendant Fortune Tobacco Corporation has no right to manufacture and sell cigarettes bearing the allegedly identical or confusingly similar trademark "MARK" in contravention of Section 22 of the Trademark Law, and should, therefore, be precluded during the pendency of the case from performing the acts complained of via a preliminary injunction (p. 75, Court of Appeals Rollo in AC-G.R. SP No. 13132). For its part, Fortune Tobacco Corporation admitted petitioners' certificates of registration with the Philippine Patent Office subject to the affirmative and special defense on misjoinder of party plaintiffs. Private respondent alleged further that it has been authorized by the Bureau of Internal Revenue to manufacture and sell cigarettes bearing the trademark "MARK", and that "MARK" is a common word which cannot be exclusively appropriated (p.158, Court of Appeals Rollo in A.C.-G.R. SP No. 13132). On March 28, 1983, petitioners' prayer for preliminary injunction was denied by the Presiding Judge of Branch 166 of the Regional Trial Court of the National Capital Judicial Region stationed at Pasig, premised upon the following propositions: Plaintiffs admit in paragraph 2 of the complaint that ". . . they are not doing business in the Philippines and are suing on an isolated transaction . . .". This simply means that they are not engaged in the sale, manufacture, importation, expor[t]ation and advertisement of their cigarette products in the Philippines. With this admission, defendant asks: ". . . how could defendant's "MARK" cigarettes cause the former "irreparable damage" within the territorial limits of the Philippines?" Plaintiffs maintain that since their trademarks are entitled to protection by treaty obligation under Article 2 of the Paris Convention of which the Philippines is a member and ratified by Resolution No. 69 of the Senate of the Philippines and as such, have the force and effect of law under Section 12, Article XVII of our Constitution and since this is an action for a violation or infringement of a trademark or trade name by defendant, such mere allegation is sufficient even in the absence of proof to support it. To the mind of the Court, precisely, this is the issue in the main case to determine whether or not there has been an invasion of plaintiffs' right of property to such trademark or trade name. This claim of plaintiffs is disputed by defendant in paragraphs 6 and 7 of the Answer; hence, this

cannot be made a basis for the issuance of a writ of preliminary injunction. There is no dispute that the First Plaintiff is the registered owner of trademar[k] "MARK VII" with Certificate of Registration No. 18723, dated April 26,1973 while the Second Plaintiff is likewise the registered owner of trademark "MARK TEN" under Certificate of Registration No. 11147, dated May 28, 1963 and the Third Plaintiff is a registrant of trademark "LARK" as shown by Certificate of Registration No. 10953 dated March 23, 1964, in addition to a pending application for registration of trademark "MARK VII" filed on November 21, 1980 under Application Serial No. 43243, all in the Philippine Patent Office. In same the manner, defendant has a pending application for registration of the trademark "LARK" cigarettes with the Philippine Patent Office under Application Serial No. 44008. Defendant contends that since plaintiffs are "not doing business in the Philippines" coupled the fact that the Director of Patents has not denied their pending application for registration of its trademark "MARK", the grant of a writ of preliminary injunction is premature. Plaintiffs contend that this act(s) of defendant is but a subterfuge to give semblance of good faith intended to deceive the public and patronizers into buying the products and create the impression that defendant's goods are identical with or come from the same source as plaintiffs' products or that the defendant is a licensee of plaintiffs when in truth and in fact the former is not. But the fact remains that with its pending application, defendant has embarked in the manufacturing, selling, distributing and advertising of "MARK" cigarettes. The question of good faith or bad faith on the part of defendant are matters which are evidentiary in character which have to be proven during the hearing on the merits; hence, until and unless the Director of Patents has denied defendant's application, the Court is of the opinion and so holds that issuance a writ of preliminary injunction would not lie. There is no question that defendant has been authorized by the Bureau of Internal Revenue to manufacture cigarettes bearing the trademark "MARK" (Letter of Ruben B. Ancheta, Acting Commissioner addressed to Fortune Tobacco Corporation dated April 3, 1981, marked as Annex "A", defendant's "OPPOSITION, etc." dated September 24, 1982). However, this authority is qualified . . . that the said brands have been accepted and registered by the Patent Office not later than six (6) months after you have been manufacturing the cigarettes and placed the same in the market." However, this grant ". . . does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your

indicated trademarks/brands". As aforestated, the registration of defendant's application is still pending in the Philippine Patent Office. It has been repeatedly held in this jurisdiction as well as in the United States that the right or title of the applicant for injunction remedy must be clear and free from doubt. Because of the disastrous and painful effects of an injunction, Courts should be extremely careful, cautious and conscionable in the exercise of its discretion consistent with justice, equity and fair play. There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. (Bonaparte v. Camden, etc. N. Co., 3 F. Cas. No. 1, 617, Baldw. 205, 217.) Courts of equity constantly decline to lay down any rule which injunction shall be granted or withheld. There is wisdom in this course, for it is impossible to foresee all exigencies of society which may require their aid to protect rights and restrain wrongs. (Merced M. Go v. Freemont, 7 Gal. 317, 321; 68 Am. Dec. 262.) It is the strong arm of the court; and to render its operation begin and useful, it must be exercised with great discretion, and when necessary requires it. (Attorney-General v. Utica Inc. Co., P. John Ch. (N.Y.) 371.) Having taken a panoramic view of the position[s] of both parties as viewed from their pleadings, the picture reduced to its minimum size would be this: At the crossroads are the two (2) contending parties, plaintiffs vigorously asserting the rights granted by law, treaty and jurisprudence to restrain defendant in its activities of manufacturing, selling, distributing and advertising its "MARK" cigarettes and now comes defendant who countered and refused to be restrained claiming that it has been authorized temporarily by the Bureau of Internal Revenue under certain conditions to do so

as aforestated coupled by its pending application for registration of trademark "MARK" in the Philippine Patent Office. This circumstance in itself has created a dispute between the parties which to the mind of the Court does not warrant the issuance of a writ of preliminary injunction. It is well-settled principle that courts of equity will refuse an application for the injunctive remedy where the principle of law on which the right to preliminary injunction rests is disputed and will admit of doubt, without a decision of the court of law establishing such principle although satisfied as to what is a correct conclusion of law upon the facts. The fact, however, that there is no such dispute or conflict does not in itself constitute a justifiable ground for the court to refuse an application for the injunctive relief. (Hackensack Impr. Commn. v. New Jersey Midland P. Co., 22 N.J. Eg. 94.) Hence, the status quo existing between the parties prior to the filing of this case should be maintained. For after all, an injunction, without reference to the parties, should be violent, vicious nor even vindictive. (pp. 338-341, Rollo in G.R. No. 91332.) In the process of denying petitioners' subsequent motion for reconsideration of the order denying issuance of the requested writ, the court of origin took cognizance of the certification executed on January 30, 1984 by the Philippine Patent Office attesting to the fact that private respondent's application for registration is still pending appropriate action. Apart from this communication, what prompted the trial court judge to entertain the idea of prematurity and untimeliness of petitioners' application for a writ of preliminary injunction was the letter from the Bureau of Internal Revenue date February 2, 1984 which reads: MRS. TERESITA GANDIONGCO OLEDAN Legal Counsel Fortune Tobacco Corporation Madam: In connection with your letter dated January 25, 1984, reiterating your query as to whether your label approval automatically expires or becomes null and void after six (6) months if the brand is not accepted and by the patent office, please be informed that no provision in the Tax Code or revenue regulation that requires an

applicant to comply with the aforementioned condition order that his label approved will remain valid and existing. Based on the document you presented, it shows that registration of this particular label still pending resolution by the Patent Office. These being so , you may therefore continue with the production said brand of cigarette until this Office is officially notified that the question of ownership of "MARK" brand is finally resolved. V e r y t r u l y y o u r s , T E O D O R O D . P A R E O C

h i e f , M a n u f a c t u r e d T o b a c c o T a x D i v i s i o n T A N P 6

5 3 1 D 2 8 3 0 A 6 (p. 348, Rollo.) It appears from the testimony of Atty. Enrique Madarang, Chief of the Trademark Division of the then Philippine Patent Office that Fortune's application for its trademark is still pending before said office (p. 311, Rollo). Petitioners thereafter cited supervening events which supposedly transpired since March 28, 1983, when the trial court first declined issuing a writ of preliminary injunction, that could alter the results of the case in that Fortune's application had been rejected, nay, barred by the Philippine Patent Office, and that the application had been forfeited by abandonment, but the trial court nonetheless denied the second motion for issuance of the injunctive writ on April 22, 1987, thus: For all the prolixity of their pleadings and testimonial evidence, the plaintiffs-movants have fallen far short of the legal requisites that would justify the grant of the writ of preliminary injunction prayed for. For one, they did not even bother to establish by competent evidence that the products supposedly affected adversely by defendant's trademark now subject of an application for registration with the Philippine Patents Office, are in actual use in the Philippines. For another, they concentrated their fire on the alleged abandonment and forfeiture by defendant of said application for registration. The Court cannot help but take note of the fact that in their complaint plaintiffs included a prayer for issuance preliminary injunction. The petition was duly heard, and thereafter matter was assiduously discussed lengthily and resolved against plaintiffs in a 15-page Order issued by the undersigned's predecessor on March 28, 1983. Plaintiffs' motion for reconsideration was denied in

another well-argued 8 page Order issued on April 5, 1984,, and the matter was made to rest. However, on the strength of supposed changes in the material facts of this case, plaintiffs came up with the present motion citing therein the said changes which are: that defendant's application had been rejected and barred by the Philippine Patents Office, and that said application has been deemed abandoned and forfeited. But defendant has refiled the same. Plaintiffs' arguments in support of the present motion appear to be a mere rehash of their stand in the first above-mentioned petition which has already been ruled upon adversely against them. Granting that the alleged changes in the material facts are sufficient grounds for a motion seeking a favorable grant of what has already been denied, this motion just the same cannot prosper. In the first place there is no proof whatsoever that any of plaintiffs' products which they seek to protect from any adverse effect of the trademark applied for by defendant, is in actual use and available for commercial purposes anywhere in the Philippines. Secondly as shown by plaintiffs' own evidence furnished by no less than the chief of Trademarks Division of the Philippine Patent Office, Atty. Enrique Madarang, the abandonment of an application is of no moment, for the same can always be refiled. He said there is no specific provision in the rules prohibiting such refiling (TSN, November 21, 1986, pp. 60 & 64, Raviera). In fact, according to Madarang, the refiled application of defendant is now pending before the Patents Office. Hence, it appears that the motion has no leg to stand on. (pp. 350-351, Rollo in G. R. No. 91332.) Confronted with this rebuff, petitioners filed a previous petition for certiorari before the Court, docketed as G.R. No. 78141, but the petition was referred to the Court of Appeals. The Court of Appeals initially issued a resolution which set aside the court of origin's order dated April 22, 1987, and granted the issuance of a writ of preliminary injunction enjoining Fortune, its agents, employees, and representatives, from manufacturing, selling, and advertising "MARK" cigarettes. The late Justice Cacdac, speaking for the First Division of the Court of Appeals in CA-G.R. SP No. 13132, remarked: There is no dispute that petitioners are the registered owners of the trademarks for cigarettes "MARK VII", "MARK TEN", and "LARK".(Annexes B, C and D, petition). As found and reiterated by

the Philippine Patent Office in two (2) official communications dated April 6, 1983 and January 24, 1984, the trademark "MARK" is "confusingly similar" to the trademarks of petitioners, hence registration was barred under Sec. 4 (d) of Rep. Act. No. 166, as amended (pp. 106, 139, SCA rollo). In a third official communication dated April 8, 1986, the trademark application of private respondent for the "MARK" under Serial No. 44008 filed on February 13, 1981 which was declared abandoned as of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases." (p. 107, CA rollo). The foregoing documents or communications mentioned by petitioners as "the changes in material facts which occurred after March 28, 1983", are not also questioned by respondents. Pitted against the petitioners' documentary evidence, respondents pointed to (1) the letter dated January 30, 1979 (p. 137, CA rollo) of Conrado P. Diaz, then Acting Commissioner of Internal Revenue, temporarily granting the request of private respondent for a permit to manufacture two (2) new brands of cigarettes one of which is brand "MARK" filter-type blend, and (2) the certification dated September 26, 1986 of Cesar G. Sandico, Director of Patents (p. 138, CA rollo) issued upon the written request of private respondents' counsel dated September 17, 1986 attesting that the records of his office would show that the "trademark MARK" for cigarettes is now the subject of a pending application under Serial No. 59872 filed on September 16, 1986. Private respondent's documentary evidence provides the reasons neutralizing or weakening their probative values. The penultimate paragraph of Commissioner Diaz' letter of authority reads: Please be informed further that the authority herein granted does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your above-named brands/trademark. while Director Sandico's certification contained similar conditions as follows: This Certification, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or unfair competition in relation to the aforesaid trademark nor the right to register if contrary to the provisions of the Trademark

Law, Rep. Act No. 166 as amended and the Revised Rules of Practice in Trademark Cases. The temporary permit to manufacture under the trademark "MARK" for cigarettes and the acceptance of the second application filed by private respondent in the height of their dispute in the main case were evidently made subject to the outcome of the said main case or Civil Case No. 47374 of the respondent Court. Thus, the Court has not missed to note the absence of a mention in the Sandico letter of September 26, 1986 of any reference to the pendency of the instant action filed on August 18, 1982. We believe and hold that petitioners have shown a prima facie case for the issuance of the writ of prohibitory injunction for the purposes stated in their complaint and subsequent motions for the issuance of the prohibitory writ. (Buayan Cattle Co. vs. Quintillan, 125 SCRA 276) The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the injunction is to be directed as violative of said right. (Buayan Cattle Co. vs. Quintillan, supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it deems contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the sound discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. State House, 151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the prohibitive writ constituted excess of jurisdiction and grave abuse discretion. If the lower court does not grant preliminary injunction, the appellate court may grant the same. (Service Specialists, Inc. vs. Sheriff of Manila, 145 SCRA 139). (pp. 165-167, Rollo in G.R. No. 91332.) After private respondent Fortune's motion for reconsideration was rejected, a motion to dissolve the disputed writ of preliminary injunction with offer to post a counterbond was submitted which was favorably acted upon by the Court of Appeals, premised on the filing of a sufficient counterbond to answer for whatever perjuicio petitioners may suffer as a result thereof, to wit:

The private respondent seeks to dissolve the preliminary injunction previously granted by this Court with an offer to file a counterbond. It was pointed out in its supplemental motion that lots of workers employed will be laid off as a consequence of the injunction and that the government will stand to lose the amount of specific taxes being paid by the private respondent. The specific taxes being paid is the sum total of P120,120, 295.98 from January to July 1989. The petitioners argued in their comment that the damages caused by the infringement of their trademark as well as the goodwill it generates are incapable of pecuniary estimation and monetary evaluation and not even the counterbond could adequately compensate for the damages it will incur as a result of the dissolution of the bond. In addition, the petitioner further argued that doing business in the Philippines is not relevant as the injunction pertains to an infringement of a trademark right. After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to file a counterbond and the opposition thereto, WE believe that there are sound and cogent reasons for US to grant the dissolution of the writ of preliminary injunction by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of the dissolution of the preliminary injunction. The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages. While the rule is that an offer of a counterbond does not operate to dissolve an injunction previously granted, nevertheless, it is equally true that an injunction could be dissolved only upon good and valid grounds subject to the sound discretion of the court. As WE have maintained the view that there are sound and good reasons to lift the preliminary injunction, the motion to file a counterbond is granted. (pp. 53-54, Rollo in G.R. No. 91332.) Petitioners, in turn, filed their own motion for re-examination geared towards reimposition of the writ of preliminary injunction but to no avail (p. 55, Rollo in G.R. No. 91332).

Hence, the instant petition casting three aspersions that respondent court gravely abused its discretion tantamount to excess of jurisdiction when: I. . . . it required, contrary to law and jurisprudence, that in order that petitioners may suffer irreparable injury due to the lifting of the injunction, petitioners should be using actually their registered trademarks in commerce in the Philippines; II. . . . it lifted the injunction in violation of section 6 of Rule 58 of the Rules of Court; and III. . . . after having found that the trial court had committed grave abuse of discretion and exceeded its jurisdiction for having refused to issue the writ of injunction to restrain private respondent's acts that are contrary to equity and good conscience, it made a complete about face for legally insufficient grounds and authorized the private respondent to continue performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring not only the mandates of the Trademark Law, the international commitments of the Philippines, the judicial admission of private respondent that it will have no more right to use the trademark "MARK" after the Director of Patents shall have rejected the application to register it, and the admonitions of the Supreme Court. (pp. 24-25, Petition; pp. 25-26, Rollo.) To sustain a successful prosecution of their suit for infringement, petitioners, as foreign corporations not engaged in local commerce, rely on section 21-A of the Trademark Law reading as follows: Sec. 21-A. Any foreign corporation or juristic person to which a mark or trade-name has been registered or assigned under this act may bring an action hereunder for infringement, for unfair competition, or false designation of origin and false description, whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint: Provided, That the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled, by treaty, convention or law, grants a similar privilege to corporate or juristic persons of the Philippines. (As inserted by Sec. 7 of Republic Act No. 638.) to drive home the point that they are not precluded from initiating a cause of action in the Philippines on account of the principal perception that another entity is pirating their symbol without any lawful authority to do so. Judging from a perusal of the

aforequoted Section 21-A, the conclusion reached by petitioners is certainly correct for the proposition in support thereof is embedded in the Philippine legal jurisprudence. Indeed, it was stressed in General Garments Corporation vs. Director of Patents (41 SCRA 50 [1971]) by then Justice (later Chief Justice) Makalintal that: Parenthetically, it may be stated that the ruling in the Mentholatum case was subsequently derogated when Congress, purposely to "counteract the effects" of said case, enacted Republic Act No. 638, inserting Section 21-A in the Trademark Law, which allows a foreign corporation or juristic person to bring an action in Philippine courts for infringement of a mark or tradename, for unfair competition, or false designation of origin and false description, "whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fiftynine, as amended, otherwise known as the Corporation Law, at the time it brings complaint." Petitioner argues that Section 21-A militates against respondent's capacity to maintain a suit for cancellation, since it requires, before a foreign corporation may bring an action, that its trademark or tradename has been registered under the Trademark Law. The argument misses the essential point in the said provision, which is that the foreign corporation is allowed thereunder to sue "whether or not it has been licensed to do business in the Philippines" pursuant to the Corporation Law (precisely to counteract the effects of the decision in the Mentholatum case). (at p. 57.) However, on May, 21, 1984, Section 21-A, the provision under consideration, was qualified by this Court in La Chemise Lacoste S.A. vs. Fernandez (129 SCRA 373 [1984]), to the effect that a foreign corporation not doing business in the Philippines may have the right to sue before Philippine Courts, but existing adjective axioms require that qualifying circumstances necessary for the assertion of such right should first be affirmatively pleaded (2 Agbayani Commercial Laws of the Philippines, 1991 Ed., p. 598; 4 Martin, Philippine Commercial Laws, Rev. Ed., 1986, p. 381). Indeed, it is not sufficient for a foreign corporation suing under Section 21-A to simply allege its alien origin. Rather, it must additionally allege its personality to sue. Relative to this condition precedent, it may be observed that petitioners were not remiss in averring their personality to lodge a complaint for infringement (p. 75,Rollo in AC-G.R. SP No. 13132) especially so when they asserted that the main action for infringement is anchored on an isolated transaction (p. 75, Rollo in AC-G.R. SP No. 13132; Atlantic Mutual Ins. Co. vs. Cebu Stevedoring Co., Inc., 17

SCRA 1037 (1966), 1 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988, p. 103). Another point which petitioners considered to be of significant interest, and which they desire to impress upon us is the protection they enjoy under the Paris Convention of 1965 to which the Philippines is a signatory. Yet, insofar as this discourse is concerned, there is no necessity to treat the matter with an extensive response because adherence of the Philippines to the 1965 international covenant due to pact sunt servanda had been acknowledged in La Chemise (supra at page 390). Given these confluence of existing laws amidst the cases involving trademarks, there can be no disagreement to the guiding principle in commercial law that foreign corporations not engaged in business in the Philippines may maintain a cause of action for infringement primarily because of Section 21-A of the Trademark Law when the legal standing to sue is alleged, which petitioners have done in the case at hand. In assailing the justification arrived at by respondent court when it recalled the writ of preliminary injunction, petitioners are of the impression that actual use of their trademarks in Philippine commercial dealings is not an indispensable element under Article 2 of the Paris Convention in that: (2) . . . . no condition as to the possession of a domicile or establishment in the country where protection is claimed may be required of persons entitled to the benefits of the Union for the enjoyment of any industrial property of any industrial property rights. (p. 28, Petition; p. 29, Rollo in G.R. No. 91332.) Yet petitioners' perception along this line is nonetheless resolved by Sections 2 and 2-A of the Trademark Law which speak loudly, about necessity of actual commercial use of the trademark in the local forum: Sec. 2. What are registrable. Trademarks, tradenames and service marks owned by persons, corporations, partnerships or associations domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in any foreign country may be registered in accordance with the provisions of this Act; Provided, That said trademarks, tradenames, or service marks are actually in use in commerce and services not less than two months in the Philippines before the time the applications for registration are filed; And provided, further, That the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines, and such fact is officially certified, with a certified true copy of the foreign law translated into the English language, by the

government of the foreign country to the Government of the Republic of the Philippines. (As amended by R.A. No. 865). Sec. 2-A. Ownership of trademarks, tradenames and service marks; how acquired. Anyone who lawfully produces or deals in merchandise of any kind or who engages in any lawful business, or who renders any lawful service in commerce, by actual use thereof in manufacture or trade, in business,and in the service rendered, may appropriate to his exclusive use a trademark, a tradename, or a service mark not so appropriated by another, to distinguish his merchandise, business or service from the merchandise, business or service of others. The ownership or possession of a trademark, tradename, service mark, heretofore or hereafter appropriated, as in this section provided, shall be recognized and protected in the same manner and to the same extent as are other property rights known to the law. (As amended by R.A. No. 638). (Kabushi Kaisha Isetan vs. Intermediate Appellate Court, 203 SCRA 583 [1991], at pp. 589-590; emphasis supplied.) Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal (Mortensen vs. Peters, Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law and World Organization, 1971 Ed., p. 20). Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislative enactments (Salonga and Yap, Public International Law, Fourth ed., 1974, p. 16). The aforequoted basic provisions of our Trademark Law, according to Justice Gutierrez, Jr., in Kabushi Kaisha Isetan vs. Intermediate Appellate Court (203 SCRA 583 [1991]), have been construed in this manner: A fundamental principle of Philippine Trademark Law is that actual use in commerce in the Philippines is a pre-requisite to the acquisition of ownership over a trademark or a tradename. xxx xxx xxx These provisions have been interpreted in Sterling Products International, Inc. v. Farbenfabriken Bayer Actiengesellschaft (27 SCRA 1214 [1969]) in this way:

A rule widely accepted and firmly entrenched because it has come down through the years is that actual use in commerce or business is a prerequisite to the acquisition of the right of ownership over a trademark. xxx xxx xxx . . . Adoption alone of a trademark would not give exclusive right thereto. Such right grows out of their actual use. Adoption is not use. One may make advertisements, issue circulars, give out price lists on certain goods; but these alone would not give exclusive right of use. For trademark is a creation of use. The underlying reason for all these is that purchasers have come to understand the mark as indicating the origin of the wares. Flowing from this is the trader's right to protection in the trade he has built up and the goodwill he has accumulated from use of the trademark. . . . In fact, a prior registrant cannot claim exclusive use of the trademark unless it uses it in commerce. We rule[d] in Pagasa Industrial Corporation v. Court of Appeals (118 SCRA 526 [1982]): 3. The Trademark law is very clear. It requires actual commercial use of the mark prior to its registration. There is no dispute that respondent corporation was the first registrant, yet it failed to fully substantiate its claim that it used in trade or business in the Philippines the subject mark; it did not present proof to invest it with exclusive, continuous adoption of the trademark which should consist among others, of considerable sales since its first use. The invoices (Exhibits 7, 7-a, and 8-b) submitted by respondent which were dated way back in 1957 show that the zippers sent to the Philippines were to be used as "samples" and "of no commercial value". The evidence for respondent must be clear, definite and free from inconsistencies. (Sy Ching v. Gaw Lui, 44 SCRA 148-149) "Samples" are not for sale and therefore, the fact of exporting them to the Philippines cannot be considered to be equivalent to the "use" contemplated by the law. Respondent did not expect income from such "samples". There were no receipts to establish sale, and no proof were presented to show that they were subsequently sold in the Philippines. (Pagasa Industrial Corp. v. Court of Appeals, 118 SCRA 526 [1982]; Emphasis Supplied)

The records show that the petitioner has never conducted any business in the Philippines. It has never promoted its tradename or trademark in the Philippines. It is unknown to Filipino except the very few who may have noticed it while travelling abroad. It has never paid a single centavo of tax to the Philippine government. Under the law, it has no right to the remedy it seeks. (at pp. 589591.) In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on account of Section 21-A of the Trademark Law but the question whether they have an exclusive right over their symbol as to justify issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same law. It is thus incongruous for petitioners to claim that when a foreign corporation not licensed to do business in Philippines files a complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation may have the personality to file a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the emblem in the local market. Going back to the first assigned error, we can not help but notice the manner the ascription was framed which carries with it the implied but unwarranted assumption of the existence of petitioners' right to relief. It must be emphasized that this aspect of exclusive dominion to the trademarks, together with the corollary allegation of irreparable injury, has yet to be established by petitioners by the requisite quantum of evidence in civil cases. It cannot be denied that our reluctance to issue a writ of preliminary injunction is due to judicial deference to the lower courts, involved as there is mere interlocutory order (Villarosa vs. Teodoro, Sr., 100 Phil. 25 [1956]). In point of adjective law, the petition has its roots on a remedial measure which is but ancillary to the main action for infringement still pending factual determination before the court of origin. It is virtually needless to stress the obvious reality that critical facts in an infringement case are not before us more so when even Justice Feliciano's opinion observes that "the evidence is scanty" and that petitioners "have yet to submit copies or photographs of their registered marks as used in cigarettes" while private respondent has not, for its part, "submitted the actual labels or packaging materials used in selling its "Mark" cigarettes." Petitioners therefore, may not be permitted to presume a given state of facts on their so called right to the trademarks which could be subjected to irreparable injury and in the process, suggest the fact of infringement. Such a ploy would practically place the cart ahead of the horse. To our mind, what appears to be the insurmountable barrier to petitioners' portrayal of whimsical exercise of discretion by the Court of Appeals is the well-taken remark of said court that:

The petitioner[s] will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages. (p. 54. Rollo in G.R. No. 91332.) More telling are the allegations of petitioners in their complaint (p. 319, Rollo G.R. No. 91332) as well as in the very petition filed with this Court (p. 2, Rollo in G.R. No. 91332) indicating that they are not doing business in the Philippines, for these frank representations are inconsistent and incongruent with any pretense of a right which can breached (Article 1431, New Civil Code; Section 4, Rule 129; Section 3, Rule 58, Revised Rules of Court). Indeed, to be entitled to an injunctive writ, petitioner must show that there exists a right to be protected and that the facts against which injunction is directed are violative of said right (Searth Commodities Corporation vs. Court of Appeals, 207 SCRA 622 [1992]). It may be added in this connection that albeit petitioners are holders of certificate of registration in the Philippines of their symbols as admitted by private respondent, the fact of exclusive ownership cannot be made to rest solely on these documents since dominion over trademarks is not acquired by the mere fact of registration alone and does not perfect a trademark right (Unno Commercial Enterprises, Inc. vs. General Milling Corporation, 120 SCRA 804 [1983]). Even if we disregard the candid statements of petitioners anent the absence of business activity here and rely on the remaining statements of the complaint below, still, when these averments are juxtaposed with the denials and propositions of the answer submitted by private respondent, the supposed right of petitioners to the symbol have thereby been controverted. This is not to say, however, that the manner the complaint was traversed by the answer is sufficient to tilt the scales of justice in favor of private respondent. Far from it. What we are simply conveying is another basic tenet in remedial law that before injunctive relief may properly issue, complainant's right or title must be undisputed and demonstrated on the strength of one's own title to such a degree as to unquestionably exclude dark clouds of doubt, rather than on the weakness of the adversary's evidence, inasmuch as the possibility of irreparable damage, without prior proof of transgression of an actual existing right, is no ground for injunction being mere damnum absque injuria (TalisaySilay Milling Co., Inc. vs. CFI of Negros Occidental, 42 SCRA 577 [1971]; Francisco, Rules of Court, Second ed., 1985, p. 225; 3 Martin, Rules of Court, 1986 ed., p. 82). On the economic repercussion of this case, we are extremely bothered by the thought of having to participate in throwing into the streets Filipino workers engaged in the manufacture and sale of private respondent's "MARK" cigarettes who might be retrenched and forced to join the ranks of the many unemployed

and unproductive as a result of the issuance of a simple writ of preliminary injunction and this, during the pendency of the case before the trial court, not to mention the diminution of tax revenues represented to be close to a quarter million pesos annually. On the other hand, if the status quo is maintained, there will be no damage that would be suffered by petitioners inasmuch as they are not doing business in the Philippines. With reference to the second and third issues raised by petitioners on the lifting of the writ of preliminary injunction, it cannot be gainsaid that respondent court acted well within its prerogatives under Section 6, Rule 58 of the Revised Rules of Court: Sec. 6. Grounds for objection to, or for motion of dissolution of injunction. The injunction may be refused or, if granted ex parte, may be dissolved, upon the insufficiency of the complaint as shown by the complaint itself, with or without notice to the adverse party. It may also be refused or dissolved on other grounds upon affidavits on the part of the defendants which may be opposed by the plaintiff also by affidavits. It may further be refused or, if granted, may be dissolved, if it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof, as the case may be, would cause great damage to the defendant while the plaintiff can be fully compensated for such damages as he may suffer, and the defendant files a bond in an amount fixed by the judge conditioned that he will pay all damages which the plaintiff may suffer by the refusal or the dissolution of the injunction. If it appears that the extent of the preliminary injunction granted is too great, it must be modified. Under the foregoing rule, injunction may be refused, or, if granted, may be dissolved, on the following instances: (1) If there is insufficiency of the complaint as shown by the allegations therein. Refusal or dissolution may be granted in this case with or without notice to the adverse party. (2) If it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof would cause great damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer. The defendant, in this case, must file a bond in an amount fixed by the judge conditioned that he will pay all damages which plaintiff may suffer by the refusal or the dissolution of the injunction.

(3) On the other grounds upon affidavits on the part of the defendant which may be opposed by the plaintiff also affidavits. Modification of the injunction may also be ordered by the court if it appears that the extent of the preliminary injunction granted is too great. (3 Martin, Rules of Court, 1986 ed., p. 99; Francisco,supra, at p. 268.) In view of the explicit representation of petitioners in the complaint that they are not engaged in business in the Philippines, it inevitably follows that no conceivable damage can be suffered by them not to mention the foremost consideration heretofore discussed on the absence of their "right" to be protected. At any rate, and assuming in gratia argumenti that respondent court erroneously lifted the writ it previously issued, the same may be cured by appeal and not in the form of a petition for certiorari (Clark vs. Philippine Ready Mix Concrete Co., 88 Phil. 460 [1951]). Verily, and mindful of the rule that a writ of preliminary injunction is an interlocutory order which is always under the control of the court before final judgment, petitioners' criticism must fall flat on the ground, so to speak, more so when extinction of the previously issued writ can even be made without previous notice to the adverse party and without a hearing (Caluya vs. Ramos, 79 Phil. 640 [1974]; 3 Moran, Rules of Court, 1970 ed., p. 81). WHEREFORE, the petition is hereby DISMISSED and the Resolutions of the Court of Appeals dated September 14, 1989 and November 29, 1989 are hereby AFFIRMED. SO ORDERED. Bidin, J., concurs. Davide, Jr., concurs in the result. Romero, J. took no part.

Separate Opinions

FELICIANO, J., dissenting:

I find myself unable to join in the opinion prepared by my distinguished brother, Melo, J. It seems to me that the issues involved in this case are rather more complex than what has been assumed to be the case by the majority opinion. For this and related reasons, there is set out below a statement of the relevant facts (as I see them) that is more extensive than what is ordinarily found in dissenting opinions. Petitioner Philip Morris, Inc. is a corporation organized and existing under the law of Virginia, U.S.A. Petitioners Benson & Hedges (Canada), Inc. and Fabriques de Tabac Reunies, S.A., both wholly owned subsidiaries of Philip Morris, Inc., are organized and existing under the law of Canada and Switzerland, respectively. Philip Morris, Inc. is registered owner of the trademark "MARK VII" for cigarettes. Its ownership thereof is evidenced by Philippine Patent Office Trademark Certificate of Registration No. 18723, dated 26 April 1973. The statement attached to the Certificate of Registration states that the trademark "MARK VII" had been registered in the United States Patent Office, on the Principal Register, under Certificate of Registration No. 888,931 issued on 7 April 1970. The statement also requested that the trademark be registered in the Philippine Patent Office on the Principal Register in accordance with Section 37 of R.A. No. 166, as amended. Benson & Hedges (Canada), Inc. is the registered owner of the trademark "MARK TEN" also for cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No. 11147, dated 28 May 1964, on the Principal Register. This Trademark Certificate of Registration was originally issued in the name of Canadian Tabacofina Ltd. and later assigned to Benson & Hedges (Canada), Inc. Petitioners alleged that the name Canadian Tabacofina Ltd. was later changed to Benson & Hedges (Canada) Ltd. This trademark Certificate of Registration was renewed on 28 May 1984. The statement attached thereto stated that the "date of first use of the trademark 'MARK TEN' in trade in or with the Philippines is April 15, 1963," and that trademark had "been in actual use in commerce over the Philippines continuously for two months." Fabriques de Tabac Reunies, S.A. is registered owner of the trademark "LARK" also for cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No. 10953, dated 25 March 1964. This Trademark Certificate of Registration was originally issued in the name of Ligget and Myres Tobacco Company was later assigned to Fabriques de Tabac Reunies, S.A. Petitioners alleged that the name of Liggett and Myres Tobacco Company was changed later to Fabriques de Tabac Reunies, S.A. The statement attached to this Certificate of Registration states that the trademark "LARK" was first used

by Ligget and Myres Tobacco Company on 31 May 1920, and first used by it "in commerce in or with the Philippines on February 6, 1963" and has been continuously used by it "in trade in or with the Philippines since February 6, 1963." Sometime before 17 October 1981, private respondent Fortune Tobacco Corporation ("Fortune") commenced manufacturing and selling in the Philippines cigarettes under the brandname "MARK." Fortune also filed on 13 February 1981 with the Philippine Patent Office an application for registration of "MARK" as a trademark for cigarettes. By a letter dated 17 October 1981, petitioner through their lawyers wrote to Fortune stating that the manufacturing, selling and advertising of "MARK" cigarettes by Fortune constituted an "infringement or an act of unfair competition with" petitioners' "well-known international trademarks used on cigarettes and tobacco products which were registered worldwide and with the Philippine Patent Office." Petitioners listed their Philippine Certificates of Registration for the trademarks "MARK VII," "MARK TEN," and "LARK." Petitioners then asked Fortune "to cease and desist from further manufacturing; selling or advertising 'MARK' cigarettes," otherwise appropriate court actions would be filed without further notice. On 18 August 1982, petitioners commenced action before the Court of First Instance of Pasig, Metro Manila (Civil Case No. 47374). In their complaint, petitioners alleged that they were not doing business in the Philippines but had nonetheless the right and the capacity to bring the instant suit; that they were owners of Philippine Patent Office Trademark Certificates of Registration which were in full force and effect, covering "MARK VII," "MARK TEN," and "LARK," all for cigarettes (except the last which also covered chewing and smoking tobacco); that they had registered those trademarks in their respective countries of origin and in other countries the world and that by virtue of their "long and extensive use [had] gained international fame and acceptance;" that they had their respective real and effective industrial or commercial establishments in the United States, Canada and Switzerland, which countries were, like the Philippines, members of the Convention of Paris for the Protection of Industrial Property; that under that Convention each membercountry undertakes to prohibit the use of a trademark which constitutes a reproduction, imitation or translation of a mark already belonging to a person entitled to the benefits of the Convention and use for identical or similar goods; that petitioner Fabriques de Tabac Reunies, S.A. had long been using trademark "LARK" throughout the world, including the Philippines where its products bearing the trademark "LARK" had been sold in the duty-free market, and advertised and marketted in the Philippines at least since 1964 and have continued to be so to present; that Fortune had without previous consent, authority or license from petitioners, with knowledge of the popularity of petitioners' marks and their Philippine registrations, manufactured, advertised

and sold cigarettes bearing the identical or confusingly similar trademark "MARK" which unauthorized use constituted an act of infringement under Section 22 of R.A. No. 166, as amended; that thereby the public and the patronizers of petitioners' products were being deceived into buying Fortune's cigarettes under the impression and mistaken belief that Fortune's cigarettes were identical with, or came from the same source as, petitioners' products or that Fortune was licensee of petitioners, which it was not; that the infringement by Fortune of petitioners' trademarks have inflicted damages upon petitioners; that the continued unauthorized and unlicensed manufacture and sale by Fortune of its infringing products during the litigation would work injustice and cause irreparable injury to petitioners in violation of their property rights and moreover tend to render the judgment which the court might render ineffectual. Petitioners accordingly asked for a writ of preliminary injunction to restrain Fortune from manufacturing or selling "MARK" cigarettes, and after trial, to make such preliminary injunction permanent and to order Fortune's infringing materials to be destroyed, and for damages. Fortune filed an Opposition to petitioners' prayer for preliminary injunction. On 28 March 1983, the trial court 1issued an Order denying petitioners' motion for preliminary injunction. In rendering that order, the trial court, while noting that petitioners were holders of Philippine Certificates of Trademark Registration, relied heavily on three (3) factors: Firstly, that petitioners were foreign corporations not doing business in the Philippines; Secondly, that Fortune's application for a registration as trademark of the word "MARK" for cigarettes was then pending before the Philippine Patent Office; and Thirdly, that Fortune was the "only party authorized" by the Bureau of Internal Revenue ("BIR") to manufacture cigarettes bearing the mark "MARK" in the Philippines. In respect of the first point, the trial court was obviously heavily influenced by Fortune's argument that because petitioners were not doing business in the Philippines, which meant that "they [were] not engaged in the sale, manufacture, importation, exportation and advertisement of their cigarette products in the Philippines," Fortune's manufacture and sale of its "MARK" cigarettes could not be said to be causing petitioners "irreparable damage" within the Philippines. In respect to the second point, the trial judge felt that because the Director of Patents had not, at that point, denied Fortune's pending application for registration of its trademark "MARK," the grant of a preliminary injunction was premature. With regard to the third point, the judge noted

a letter dated 30 January 1979 2 of the then Acting Commissioner of Internal Revenue Mr. Conrado P. Diaz, temporarily granting the request of Fortune for a permit to manufacture two (2) new brands of cigarettes, one of which was "MARK." The trial judge also noted that the BIR letter contained the following paragraph: Please be informed further that this authority herein granted does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your above named brands/trademarks. 3 The trial judge, however, apparently gave no weight at all to this caveat. Petitioners sought, on 15 April 1983, reconsideration of Judge Reyes' Order denying preliminary injunction. After Fortune had filed an Opposition to petitioners' Motion for Reconsideration, and petitioners had filed their Reply and Fortune a Rejoinder, and after an offer of exhibits by the parties respectively, Judge Reyes issued on 5 April 1984 another Order denying the Motion for Reconsideration. In his second order, the trial judge laid great stress on the fact that Fortune's application for registration of its trademark "MARK" for cigarettes remained subsisting. On the basis, Judge Reyes denied petitioners' motion for reconsideration. More than two (2) years later, petitioners filed a "Second Motion for Issuance of Preliminary Injunction" dated 1 September 1986. In their Second Motion, petitioners invited attention to Paper No. 3, dated 6 April 1983, relating to Fortune's application for registration of its brandname "MARK." This Paper No. 3 reproduced a letter to Fortune's counsel by Bienvenido A. Palisoc, Senior Trademark Examiner, and Wilfredo T. Jaramillo, Trademark Examiner, stating that: This application [for registration of "Mark"] has been examined. Caption mark of the application must tally with the drawing on file. Subject mark is confusingly similar with the following marks on file: a. "Mark" with Reg. No. SR-2659 for cigarettes. b. "Mark VII" with Reg. No. 18723 for cigarettes. c. "Mark Ten" with Reg. No. 11147 for cigarettes. d. "Lark" with Reg. No. 10953 for cigarettes.

Hence, registration is barred under Sec. 4 (d) of Rep. Act No. 166 as amended. Subject mark has no trademark significance and can not serve its purpose as to indicate the source and origin of goods. Furthermore, the word "Mark" is generic and therefore incapable of exclusive appropriation. Makati, Metro Manila, April 6, 1983.
4

(Emphasis supplied)

Petitioners also invited attention to a certification dated 8 August 1986 issued by Mr. Luis M. Daca, Jr., Assistant Director, Philippine Patent Office, to the effect that Fortune's application for the mark "MARK" for cigarettes was declared abandoned as of 16 February 1986 and was now deemed forfeited. In addition, petitioners explained in some detail how Fortune's use of its mark "MARK" was "destructive of [petitioners'] property right to [their] registered trademarks." 5 Further, petitioners assailed Fortune's argument that issuance of preliminary injunction would cause "loss of revenue and taxes to the Government" and that more damages would be sustained by Fortune than by petitioners since the petitioners do not market their cigarettes in the Philippines. After Fortune had filed an Opposition to petitioners' Second Motion, the trial court, this time presided over by Judge Nicolas Galing, issued an Order dated 22 April 1987 denying once more the motion for issuance of a writ of preliminary injunction. In this order, Judge Galing relied on two (2) points: firstly, according to the trial judge, petitioners had not shown that the products they sought to protect from Fortune's "MARK" cigarettes were "in actual use and available for commercial purposes anywhere in the Philippines;" and secondly, it appeared that while Fortune's original application had been abandoned, it could be refiled and was in fact re-filed. Thus, Judge Galing in effect reiterated Judge Reyes's position that until the Director of Patents had definitely acted upon Fortune's application for registration of "MARK," petitioners' prayer for preliminary injunction could not be granted. Petitioners then filed a Petition for Review with the Supreme Court, which Petition was docketed as G.R. No. 78141. The Court ordered respondents to file their Comments on the Petition and on 30 September 1987, the Court referred the Petition to the Court of Appeals. In due course of time, the Court of Appeals, through Cacdac, Jr., J., 6 rendered a decision on 5 May 1989 setting aside the 22 April 1987 order of the trial court and ordering issuance of a writ of preliminary injunction upon filing of a bond by petitioners in the sum of P200,000.00 to be approved by the appellate court, "enjoining the private respondents, its agents, employees and

representatives from manufacturing, selling and/or advertising "MARK" cigarettes until further orders." The Court of Appeals said in pertinent part: There is no dispute that petitioners are the registered owners of the trademarks for cigarettes "MARK VII," "MARK TEN," and "LARK". (Annexes B, C and D, Petition). As found and reiterated by the Philippine Patent Office in two (2) official communications dated April 6, 1983 and January 24, 1984, the trademark "MARK" is "confusingly similar" to the trademarks of petitioners, hence, registration was barred under Sec. 4(d) of Rep. Act No. 166, as amended (pp. 106, 139 SCA rollo). In a third official communication dated April 8, 1986, the trademark application of private respondent for the mark "MARK" under Serial No. 44008 filed on February 13, 1981 which was declared abandoned as of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases.' (p. 107, CA rollo). The foregoing documents or communications mentioned by petitioners as "the changes in material facts which occurred after March 28, 1983", are not also questioned by respondents. 7 (Emphasis supplied) The Court of Appeals also noted the BIR letter of 30 January 1979 temporarily granting Fortune's request for a permit to manufacture two (2) new brands of cigarettes, including one branded "MARK," and the caveat (earlier noted) 8 that the BIR's authorization would not give Fortune any protection against any person or entity whose rights may be prejudiced by infringement or unfair competition on the part of Fortune. The Court of Appeals also referred to the certificate dated 26 September 1986 of Mr. Cesar G. Sandico, then Director of Patents, issued upon request of Fortune's counsel stating that there was a pending application for registration of the trademark "MARK" for cigarettes under Serial No. 59872, filed on 16 September 1986, noting at the same time, that Director Sandico's certification contained the following caveat or qualification: This certification, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or unfair competition in relation to the aforesaid trademark nor the right to register as contrary to the provisions of the Trademark Law, Republic Act No. 166 as amended and the Revised Rules of Practice in Trademark Cases. (Emphasis supplied) The Court of Appeals then went on to say that: [We] believe and hold that petitioners have shown a prima facie case for the issuance of the writ of prohibitory injunction for the purposes stated in their complaint and subsequent motions for the

issuance of the prohibitory writ. (Buayan Cattle Co. v. Quintillan, 125 SCRA 276). The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the injunction is to be directed as violative of said right. (Buayan Cattle Co. v. Quintillan, supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it deems contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the sound discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. Statement House, 151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the prohibitive writ constituted excess of jurisdiction and grave abuse of discretion. If the lower court does not grant preliminary injunction, the appellate court may grant the same (Service Specialists, Inc. v. Sheriff of Manila. 145 SCRA 139). 9 (Emphasis supplied) Fortune moved for reconsideration of the Decision of the Court of Appeals insisting that petitioners must first prove their "clear, unmistakable and unquestioned right to the writ, coupled with the possible damages it would suffer;" that petitioners had not suffered any "great and irreparable injury to speak of" because "petitioners have never done business in this country in the past nor in the future;" that, on the other hand, Fortune had been authorized by the BIR to manufacture "MARK" cigarettes, "thereby generating much needed funds for the Government;" that Fortune's application for registration of its brandname "MARK" with the Philippine Patent Office "still pending" and not "finally rejected" by the Director of Patents. On 12 July 1989, the Court of Appeals issued a Minute Resolution stating that the issues and arguments in Fortune's motion for reconsideration had been "fully discussed" in the Decision sought to be reconsidered, that no new arguments were raised, and accordingly denied the Motion for Reconsideration. Fortune then filed a "Motion to Dissolve Writ of Preliminary Injunction with Offer to File Counterbond" date 25 July 1989, where it reiterated the basic arguments it previously made. A "Supplemental Motion to Lift Writ of Preliminary Injunction with Offer of Counterbond" dated 17 August 1989 was next filed by Fortune. In this

"Supplemental Motion," Fortune averred that it had paid to the BIR for 1988 the amount of P181,940,177.38 for specific taxes; while for January to July 1989, it had paid the amount of P120,120,735.28. Fortune also referred to its employees assigned to the manufacture of "MARK" cigarettes who were apparently apprehensive that their services would eventually be terminated and that they would join the ranks of the unemployed. Petitioners filed an Opposition to the "Motion to Dissolve" and a Comment on the "Supplemental Motion" of Fortune. On 14 September 1989, the Court of Appeals once more through Cacdac, Jr., J. issued a Resolution lifting the preliminary injunction it had earlier granted upon the filing of counterbond by private respondent in the amount of P400,000.00 to answer for any damages petitioners may suffer as a consequence of such lifting. In its Resolution, the Court of Appeals referred to the "lots of workers employed [who] will be laid off as a consequence of the injunction" and that Government "will stand to lose the amount of specific taxes being paid by" Fortune. It when went on to say: After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to file a counterbond and the opposition thereto, WE believe that there are sound and cogent reasons for Us to grant the dissolution of the writ of preliminary injunction by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of the dissolution of the preliminary injunction. The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademarks in question and the filing of the counterbond will amply answer for such damages. While the rule is that an offer of a counterbond does not operate to dissolve an injunction previously granted, nevertheless, it is equally true that an injunction could be dissolved only upon good and valid grounds subject to the sound discretion of the court. As WE have maintained the view that there are sound and good reasons to lift the preliminary injunction the motion to file a counterbond is granted. 10 (Emphasis supplied) Petitioners filed a Motion for Reconsideration, without success. In the instant Petition, petitioners make the following basic submissions:

1. that the Court of Appeals gravely abused its discretion amounting to excess of jurisdiction when it required, contrary to law and jurisprudence that in order that petitioners may suffer irreparable injury due to the lifting of the injunction, petitioners should be using actually their registered trademarks in commerce in the Philippines; 2. that the Court of Appeals gravely abused its discretion amounting to excess of jurisdiction when it lifted the injunction in violation of Section 6 of Rule 58 of the rules of Court; 3. that the Court of Appeals gravely abused its discretion amounting to excess of jurisdiction when, after having found that the trial court had committed grave abuse of discretion and exceeded its jurisdiction for having refused to issue the writ of injunction to restrain respondent's acts that are contrary to equity and good conscience, it made a complete about face for legally insufficient grounds and authorized private respondent to continue performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring not only the mandates of the trademark law, the international commitments of the Philippines, the judicial admission of private respondent that it will have no more right to use the trademark "MARK" after the Director of Patents shall have rejected the application to register it, and the admonitions of the Supreme Court.11 The Court required private respondent to file a comment. The comment reiterated the basic arguments made by private respondent before the Court of Appeals: a. the petitioners are not suffering any irreparable damage by the lifting of the preliminary injunction by the Court of appeals. Whatever damages they might suffer are "based purely on speculation, since by judicial admission, petitioners are not doing business in the Philippines. Private respondent stressed that petitioners "are not manufacturing, importing or selling "MARK TEN," "MARK VII" or "LARK" in this country," notwithstanding "false allegation" that petitioners have been "using" the said trademarks "in commerce and trade" in the Philippines since 1963 up to the present. b. that whatever damage petitioners may be suffering is negligible when compared to the taxes that would have to be foregone by the Government considering that private respondent "paid an annual specific tax of P240 Million only on the manufacture and sale of "MARK cigarettes." Private respondent claims that, in contrast,

petitioners which are foreign corporations "based in three different countries" have not contributed anything to Government tax revenues. c. that the Court of Appeals lifted the writ of preliminary injunction it had earlier issued upon the submission of a counter bond in double the amount of the bond submitted by petitioners, under Section 6, Rule 58 of the Rules of Court, which act was within the sound discretion of the Court of Appeals. Private respondent also stresses that the right of petitioners to the injunction was still being litigated before the trial court. Reformulating the issues raised by the petitioners here, we think the principal issues may be reduced to the following: firstly, is there a clear legal right to the relief asked by petitioners in the form of a preliminary injunction to restrain private respondent from manufacturing, selling and distributing cigarettes under the trademark "MARK"? The second question is: are private respondent's acts complained of by petitioners causing irreparable injury to petitioners' rights in the premises? These two (2) basic issues are obviously related and need to be addressed together. I The first point that needs to be stressed is that petitioners have Philippine Certificates of Registration for their trademarks "MARK TEN", "MARK VII," and "LARK" in the Principal Register. Upon the other hand, private respondent's trademark "MARK" is not registered in the Principal Register in the Office of the Director of Patents; private respondents is simply an applicant for registration of a mark, the status of which application may be noted later. It is important to stress the legal effects of registration of a trademark in the Principal Register in the Office of the Director of Patents. Section 20 of R.A. No. 166, as amended, sets out the principal legal effects of such registration: Sec. 20. Certificate of registration prima facie evidence of validity. A certificate of registration, of a mark or a trade name shall be prima facie evidence of the validity of the registration, the registrant's ownership of the mark or trade name, and of the registrant's exclusive right to use the same in connection with the goods, business or services specified in the certificate, subject to any conditions and limitations stated therein. (Emphasis supplied)

In Lorenzana v. Macagba, 12 the Court distinguished between the effects of registration in the Principal Register and registration in the Supplemental Register in the following manner: (1) Registration in the Principal Register gives rise to a presumption of the validity of the registration, the registrant's ownership of the mark, and his right to the exclusive use thereof. There is no such presumption in registrations in the Supplemental Register. (2) Registration in the Principal Register is limited to the actual owner of the trademark (Unno Commercial Enterprises v. Gen. Milling Corp., 120 SCRA 804 [1983]) and proceedings therein pass on the issue of ownership, which may be contested through opposition or interference proceedings, or after registration, in a petition for cancellation. Registration in the Principal Register is constructive notice of the registrant's claims of ownership, while registration in the Supplemental Register is merely proof of actual use of the trademark and notice that the registrant has used or appropriated it. (Le Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 373 [1984]: "Registration in the Supplemental Register . . . serves as notice that the registrant is using or has appropriated the trademark.") It is not subject to opposition although it may be cancelled after its issuance. Corollarilly, registration in the Principal Register is a basis for an action for infringement, while registration in the Supplemental Register is not. (3) In application for registration in the Principal Register, publication of the application is necessary. This is not so in applications for registration in the Supplemental Register. Certificates of registration under both Registers are also different from each other. (4) Proof of registration in the Principal Register may be filed with the Bureau of Customs to exclude foreign goods bearing infringing marks while it does not hold true for registrations in the Supplemental Register. 13(Emphasis supplied) When taken with the companion presumption of regularity of performance of official duty, it will be seen that issuance of a Certificate of Registration of a trademark in the Principal Register also gives rise to the presumption that all requirements of Philippine law necessary for a valid registration (including prior use in commerce in the Philippines for at least two [2] months) were complied with and satisfied.

In contrast, private respondent filed an application for registration of its mark "MARK" for cigarettes with the Director of Patents soon after it commenced manufacturing and selling cigarettes trademark with "MARK." This application was abandoned or "forfeited", 14 for failure of private respondent to file a necessary Paper with the Director of Patent. It also appears, however, that private respondent later re-filed or reinstated its application for registration of "MARK" 15 and that, so far as the record here before us is concerned, this application remains merely an application and has not been granted and a Certificate of Registration in the Principal Register issued.16 While final action does not appear as yet to have been taken by the Director of Patents on private respondent's application, there was at least a preliminary determination of the trademark examiners that the trademark "MARK" was "confusingly similar" with petitioners' marks "MARK VII," "MARK TEN" and "LARK" and that accordingly, registration was barred under Section 4 (d) of R.A. No. 166, as amended. 17 In the trial court, both Judge Reyes and Judge Galing took the position that until the Director of Patents shall have finally acted on private respondent's application for registration of "MARK," petitioners cannot be granted the relief of preliminary injunction. It is respectfully submitted that this position is both erroneous and unfortunate. In reliance upon that position, private respondent has kept its application for registration alive and pending. The Director of Patents in turn may well have refrained from taking final action on that application, even in the absence of a restraining order from the courts, out of deference to the courts. The pendency of the application before the Director of Patents is not in itself a reason for denying preliminary injunction. Our courts have jurisdiction and authority to determine whether or not "MARK" is an infringement on petitioners' registered trademarks. Under our case law, the issuance of a Certificate of Registration of a trademark in the Principal Register by the Director of Patents would not prevent a court from ruling on whether or not the trademark so granted registration is confusingly similar with a previously registered trademark, where such issue is essential for resolution of a case properly before the court. A fortiori, a mere application for registration cannot be a sufficient reason for denying injunctive relief, whether preliminary or definitive. In the case at bar, petitioners' suit for injunction and for damages for infringement, and their application for a preliminary injunction against private respondent, cannot be resolved without resolving the issue of claimed confusing similarity. In the case at bar, the evidence of record is scanty. Petitioners have not submitted actual copies or photographs of their registered marks as used in cigarettes. Private respondent has not, for its part, submitted the actual labels or packaging material used in selling its "MARK" cigarettes. Petitioners have appended to their Petition a photocopy of an advertisement of "MARK" cigarettes. Private respondent has not included in the record a copy of its application for registration of "MARK" for cigarettes, which would include a facsimile of the trademark being applied for. It should be noted that "MARK"

and "LARK," when read or pronounced orally, constitute idem sonansin striking degree. Further, "MARK" has taken over the dominant word in "MARK VII" and "MARK TEN." These circumstances, coupled with private respondent's failure to explain how or why it chose, out of all the words in the English language, the word "mark" to refer to its cigarettes, lead me to the submission that there is a prima faciebasis for holding, as the Patent Office has held and as the Court of Appeals did hold originally, that private respondent's "MARK" infringes upon petitioners' registered trademarks. II There is thus no question as to the legal rights of petitioners as holders of trademarks registered in the Philippines. Private respondent, however, resists and assails petitioners' effort to enforce their legal rights by heavily underscoring the fact that petitioners are not registered to do business in the Philippines and are not in fact doing business in the Philippines. It is thus necessary to determine what consequences, if any, flow from this circumstance so far as enforcement of petitioners' rights as holders of registered Philippine trademarks is concerned. It should be stressed at the outset that circumstance has no legal impact upon the right of petitioners to own and register their trademarks in the Philippines. Section 2 of R.A. No. 166 as amended expressly recognizes as registrable, under this statute, marks which are owned by corporations domiciled in any foreign country: Sec. 2. What are registrable. Trademarks, trade names and service marks owned by persons, corporations, partnerships or associations domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in any foreign country may be registered in accordance with the provisions of this Act; Provided, That said trade marks, trade names or service marks are actually in use in commerce and services not less than two months in the Philippines before the time the applications for registration are filed: And provided further, That the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines, and such fact is officially certified, with a certified true copy of the foreign law translated into the English language, by the government of the foreign country to the Government of the Republic of the Philippines. (Emphasis suppplied) It is also entirely clear that foreign corporations and corporations domiciled in a foreign country are not disabled from bringing suit in Philippine courts to protect their rights as holders of trademarks registered in the Philippines. Under Section 21-A of R.A. No. 166, as amended, any foreign corporation

which is a holder of a trademark registered under Philippine law may bring an action for infringement of such mark or for unfair competition or false designation of origin and false description "whether or not it has been licensed to do business in the Philippines under the [Corporation Law] at the time it brings complaint, subject to the proviso that: . . . that the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled by treaty, convention or law, grants similar privilege to corporate or juristic persons of the Philippines. (Emphasis supplied) The rule thus embodied in Section 21-A of R.A. No. 166 as amended is also set out in Article 2 of the Paris Convention for the Protection of Industrial Property ("Paris Convention"), to which the Philippines, the United States, Canada and Switzerland are all parties. 18 Article 2 of the Paris Convention provides in relevant part: Article 2 (1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon national are complied with. (2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights. xxx xxx xxx (Emphasis supplied) Article 2, paragraph 1 of the Paris Convention embodies the principle of "national treatment" or "assimilation with nationals," one of the basic rules of the Convention. 19 Under Article 2, paragraph 1 of the Paris Convention, nationals of Canada, Switzerland and the United States who are all countries of the Paris Union are entitled to enjoy in the Philippines, also a country of the Union, the advantages and protections which Philippine law grants to Philippine nationals. Article 2 paragraph 2 of the Paris Convention restrains the Philippines from imposing a requirement of local incorporation or

establishment of a local domicile as a pre-requisite for granting to foreign nationals the protection which nationals of the Philippines are entitled to under Philippine law in respect of their industrial property rights. It should be noted that Article 2, paragraph 2 also constitutes proof of compliance with the requirement of reciprocity between, on the one hand, the Philippines and, on the other hand, Canada, Switzerland and the United States required under Section 21-A of R.A. No. 166 as amended. The net effect of the statutory and treaty provisions above referred to is that a corporate national of a member country of the Paris Union is entitled to bring in Philippine courts an action for infringement of trademarks, or for unfair competition, without necessity for obtaining registration or a license to do business in the Philippines. Article 2 as quoted above is in effect with respect to all four (4) countries. Such has been the rule in our jurisdiction even before the enactment of R.A. No. 166 and before the Philippines became a party to the Paris Convention. In Western Equipment and Supplies Company, et al. v. Reyes, etc., et al.,20 petitioner Western Electrical Company, a U.S. manufacturer of electrical and telephone equipment and suppliesnot doing business in the Philippines, commenced action in a Philippine court to protect its corporate name from unauthorized use thereof by certain Philippine residents. The Philippine residents sought to organize a Philippine corporation to be known as "Western Electrical Company" for the purpose of manufacturing and selling electrical and telephone equipment in the Philippines. The local residents resisted the suit by contending, inter alia, that the petitioner Western Electrical Company had never transacted business in the Philippines and that registration of private respondent's articles of incorporation could not in any way injure petitioner. The Supreme Court, in rejecting this argument, stated that: . . . a foreign corporation which has never done business in the Philippines but is widely and favorably known in the Philippines through the use therein of its products bearing its corporate name and tradename hasa legal right to maintain an action in the [Philippines]. The purpose of such a suit is to protect its reputation, corporate name and goodwill which has been established through the natural development of its trade for a long period of years in the doing of which it does not seek to enforce any legal or contract rights arising from or closing out of any business which it has transacted in the Philippines. . . . 21 (Emphasis supplied) Similarly, in Asari Yoko v. Kee Boc, 22 a Japanese corporation, also not engaged in any business in the Philippines, successfully opposed an application for registration of its trademark "Race Brand" on shirts and undershirts by a local businessman, even though the Japanese company had not previously registered its own mark "Race Brand" in the Philippines.

Again, in General Garments Corporation v. Director of Patents and Puritan Sportswear Corporation, 23 Puritan Sportswear Corporation, an entity organized in Pennsylvania U.S.A. and not doing business in the Philippines, filed a petition for cancellation of the mark "Puritan" which was registered in the name of petitioner General Garments Corporation for assorted men's wear, undershirts, briefs, shirts, sweaters and jackets. Puritan Sportswear alleged ownership and prior use of the trademark "Puritan" in the Philippines. Petitioner General Garments, on the other hand, contended that Puritan Sportswear, being a foreign corporation not licensed to do, and not doing, business in the Philippines, could not maintain an action for cancellation of a trademark. The Court, in upholding the Director of Patents' cancellation of the registration of the mark "Puritan" in the name of General Garments, said: . . . .such mark should not have been registered in the first place (and consequently may be cancelled if so required) if it consists of or comprises a mark or tradename which so resembles a mark or tradename . . . . previously used in the Philippines by another and not abandoned, as to be likely, when applied to or used in connection with goods, business or services of the applicant, to cause confusion or mistake or to deceive purchasers. 24 (Emphasis supplied) In Converse Rubber Corporation v. Universal Rubber Products, Inc., 25 petitioner Converse Rubber Corporation was an American manufacturer of rubber shoes, not doing business on its own in the Philippines and not licensed to do business in the Philippines, opposed the application for registration of the trademark "Universal Converse and Device" to be used also in rubber shoes and rubber slippers by private respondent Universal Rubber Products, Inc. ("Universal"). In reversing the Director of Patents and holding that Universal's application must be rejected, the Supreme Court said: The sales of 12 to 20 pairs a month of petitioner's rubber shoes cannot be considered insignificant, considering that they appear to be of high expensive quality, which not too many basketball players can afford to buy. Any sale made by a legitimate trader from his store is a commercial act establishing trademark rights since such sales are made in due course of business to the general public, not only to limited individuals. It is a matter of public knowledge that all brands of goods filter into the market, indiscriminately sold by jobbers, dealers and merchants not necessarily with the knowledge or consent of the manufacturer. Such actual sale of goods in the local market establishes trademark use which serves as the basis for any action aimed at trademark pre-emption. It is a corollary logical deduction that while Converse Rubber Corporation is not licensed to do business in the country and is not actually doing business here, it

does not mean that its goods are not being sold here or that it has not earned a reputation or goodwill as regards its products. The Director of Patents was, therefore, remiss in ruling that the proofs sales presented "was made by a single witness who had never dealt with nor had never known opposer {petitioner} . . . without Opposer having a direct or indirect hand in the transaction to be the basis of trademark pre-exemption. 26 (Emphasis supplied) Three (3) other cases may be noted. The first is La Chemise Lacoste, S.A. v. Fernandez 27 La Chemise Lacoste, S.A. although a foreign corporation not engaged in and not licensed to do business in the Philippines, was accorded protection for its trademarks "Lacoste", "Chemise Lacoste," and "Crocodile Device" for clothing and sporting apparel. The Court recognized that those marks were "world famous trademarks which the Philippines, as a party to the Paris Union, is bound to protect." Similarly, in Del Monte Corporation, et al. v. Court of Appeals, et al., 28 petitioner Del Monte Corporation was a company organized under the laws of the United States and not engaged in business in the Philippines. Because both the Philippines and the United States are signatories to the Convention of Paris, which grants to nationals of the parties the rights and advantages which their own nationals enjoy for the repression of acts of infringement and unfair competition, the Court, having found that private respondent's label was an infringement of Del Monte's trademark, held Del Monte entitled to recover damages. In Puma Sportschuhfabriken Rudolf Dassler, K.G. v. Intermediate appellate Court, et al, 29 petitioner Puma was a foreign corporation existing under the laws of the Federal Republic of Germany not registered to do business and not doing business in the Philippines, filed a complaint for infringement of trademark and for issuance of a writ of preliminary injunction against a local manufacturing company. Reversing the Court of Appeals, this Court held that Puma had legal capacity to bring the suit in the Philippines under Section 21-A of R.A. No. 166 as amended and under the provisions of the Paris Convention to which both the Philippines and the Federal Republic of Germany are parties. The Court also noted that "Puma" is an internationally known brandname. The relevancy of the doctrines set out in the cases above cited are conceded by my distinguished brother Melo, J. in the majority opinion. The majority opinion, however, goes on to say: In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on account of Section 21-A of the Trademark Law but the question of whether they have an exclusive right over their symbols as to justify issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same law. It is thus incongruous for

petitioners to claim that when a foreign corporation not licensed to do business in the Philippines files a complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation may have the personality to file a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the emblem in the local market. With great respect, certain essential qualifications must be made respecting the above paragraph. Firstly, of the petitioners' three (3) marks here involved, two (2) of them i.e., "MARK TEN" and "LARK" were registered in the Philippines on the basis of actual use in the Philippines, precisely in accordance with the requirements of Section 2-A and Section 5 (A) of R.A. No. 166 as amended. The pre-registration use in commerce and trade in the Philippines for at least two (2) months as required by the statute, is explicitly stated in the Certificates of Registration. The very fact that the appropriate Philippine Government office issued the Certificates of Registration necessarily gave rise to the presumption that such pre-registration use had in fact been shown to the satisfaction of the Philippine Patent Office (now the Bureau of Patents, Trademark and Technology Transfer ["BPTTT"]). It is important to note that respondent Fortune has not purported to attack the validity of the trademarks "Mark Ten" and "Lark" by pretending that no pre-registration use in commerce in the Philippines had been shown. 30 The third mark of petitioners "MARK VII" was registered in the Philippines on the basis of Section 37 of R.A. No. 166 as amended, i.e., on the basis of registration in the country of origin and under the Paris Convention. In such registration, by the express provisions of Section 37 (b) of R.A. No. 166 as amended, prior (pre-registration) use in commerce in the Philippines need not be alleged. Whether the Philippine trademark was based on actual use in the Philippines (under Section 2-A) or on registration in a foreign country of origin (under Section 37), the statute appears to require that trademarks (at least trademarks not shown to be internationally "well-known") must continue to be used in trade and commerce in the Philippines. It is, however, essential to point out that such continued use, as a requirement for the continued right to the exclusive use of the registered trademark, is presumed so long as the Certificate of Registration remains outstanding and so long as the registered trademark owner complies with the requirements of Section 12 of R.A. No. 166 as amended of filing affidavits with the BPTTT on the 5th, 10th and 15th anniversaries of the date of issuance of the Certificate of Registration, showing that the trademark is still in use or showing that its non-use is not due to any intention to abandon the same. In the case at bar, again, respondent Fortune has not explicitly pretended that the petitioners' trademarks have been abandoned by non-use in trade and commerce in the Philippines although it

appears to insinuate such non-use and abandonment by stressing that petitioners are not doing business in the Philippines. That petitioners are not doing business and are not licensed to do business in the Philippines, does not by any means mean either that petitioners have not complied with the requirements of Section 12 of R.A. No. 166 relating to affidavits of continued use, or that petitioners' trademarks are not in fact used in trade and commerce in the Philippines. In the Converse case, as earlier noted, the Court held that the circumstance that the foreign owner of a Philippine trademark is not licensed to do business and is not doing business in the Philippines, does not mean that petitioner's goods (that is, goods bearing petitioner's trademark) are not sold in the Philippines. For cigarettes bearing petitioners' trademarks may in fact be imported into and be available for sale in the Philippines through the acts of importers or distributors. Petitioners have stated that their "Mark VII," "Mark Ten" and "Lark" cigarettes are in fact brought into the country and available for sale here in, e.g., duty-free shops, though not imported into or sold in the Philippines by petitioners themselves. There is no legal requirement that the foreign registrant itself manufacture and sell its products here. All the statute requires is the use in trade and commerce in the Philippines, and that can be carried out by third party manufacturers operating under license granted by the foreign registrant or by the importation and distribution of finished products by independent importers or traders. The "use" of the trademark in such instances by the independent third parties constitutes use of the foreign registrant's trademarks to the benefit of the foreign registrant. 31 III We turn to petitioners' claim that they are suffering irreparable damage by reason of the manufacture and sale of cigarettes under the trademark "MARK." Here again, a basic argument of private respondent was that petitioners had not shown any damages because they are not doing business in the Philippines. I respectfully maintain that this argument is specious and without merit. That petitioners are not doing business and are not licensed to do business in the Philippines, does notnecessarily mean that petitioners are not in a position to sustain, and do not in fact sustain, damage through trademark infringement on the part of a local enterprise. 32 Such trademark infringement by a local company may, for one thing, affect the volume of importation into the Philippines of cigarettes bearing petitioners' trademarks by independent or third party traders. The damage which the petitioners claim they are sustaining by reason of the acts of private respondents, are not limited to impact upon the volume of actual imports into the Philippines of petitioners' cigarettes. Petitioners urge

that private respondent's use of its confusingly similar trademark "MARK" is invasive and destructive of petitioners property right in their registered trademarks because. a) Plaintiffs' undeniable right to the exclusive use of their registered trademarks is effectively effaced by defendant's use of a confusingly similar trademark; b) Plaintiffs would lose control of the reputation of their products as their reputation will depend on defendant's commercial activities and the quality of defendant's products; c) The market in the Philippines for plaintiffs' products will be preempted; d) Purchasers will think that defendant's goods are approved or sponsored by plaintiff; e) Defendant will be allowed to benefit from the reputation of the plaintiffs' goods and trademarks; f) Defendant will be effectively authorized to continually invade plaintiffs' property rights, for which invasion no fair and reasonable redness can be had in a court of law; and g) Plaintiffs will lose their goodwill and trade and the value of their registered trademarks will irreparably diluted and the damages to be suffered by plaintiffs cannot be redressed fairly in terms of money. 33 Modern authorities on trademark law view trademarks as symbols which perform three (3) distinct functions: first, they indicate origin or ownership of the articles to which they are attached; second, they guarantee that those articles come up to a certain standard of quality; third, they advertise the articles they symbolize. 34 The first two (2) functions have long been recognized in trademark law which characterizes the goodwill or business reputation symbolized by a trademark as a property right protected by law. Thus, the owner of a trademark is held entitled to exclude others from the use of the same, or of a confusingly similar, mark where confusion results in diversion of trade or financial injury. At the same time, trademarks warn against the imitation or faking of products and prevent the imposition of fraud upon the public. The first two (2) functions of trademarks were aptly stressed in e.g., the La Chemise Lacoste case where the objectives of trademark protection were described in the following terms:

. . . to stem the tide of fake and counterfeit consumer items flooding the Philippine market or exported abroad from our country. The greater victim is not so much the manufacturer whose product is being faked but the Filipino consuming public and in the case of exportations, our image abroad . . . . We buy a kitchen appliance, a household tool, perfume, a face powder, other toilet articles, watches, brandy or whisky, and items of clothing like jeans, T-shirts, neckties, etc. the list is quite lengthy and pay good money relying on the brand name as guarantee of its quality and genuine nature only to explode in bitter frustration and helpless anger because the purchased item turns out to be a shoddy imitation, albeit a clever looking counterfeit, of the quality product . . . . 35 The third or advertisement function of trademark has become of especial importance given the modern technology of communication and transportation and the growth of international trade. 36 Through advertisement in the broadcast and print media, the owner of the trademark is able to establish a nexus between its trademark products and the public in regions where the owner does not itself manufacture or sell its own products. 37 Through advertisement, a well-established and well-earned reputation may be gained in countries where the trademark owner has itself no established business connection. 38 Goodwill may thus be seen to be much less closely confined territorially than, say, a hundred or fifty years ago. 39 It is no longer true that "a trademark of itself cannot travel to markets where there is no article to wear the badge and no trader to offer the article." 40 Advertisement of trademarks is geared towards the promotion of use of the marked article and the attraction of potential buyers and users; 41 by fixing the identity of the marked article in the public mind, it prepares the way for growth in such commerce whether the commerce be handled by the trademark owner itself or by its licensees or independent traders. That a registered trademark has value in itself apart from the trade physically accompanying its use, has been recognized by our Court. In Ang v. Teodoro, 42 the Court was called upon the determine whether there was infringement in the use of the same trademark on articles which do not belong to the same class of goods which the lawful trademark owner manufactures and sells. In holding that there was infringing use in such case, the Court said: . . . . such unfair trading can cause injury or damage to the first user of a given trade-mark, first, by prevention of the natural expansion of his business and, second, by having his business reputation confused with and put at the mercy of the second user. When noncompetitive products are sold under the same mark, the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark created by its first user, inevitably

result. The original owner is entitled to the preservation of the valuable link between him and the public that has been created by his ingenuity and the merit of his wares or services. Experience has demonstrated that when a well-known trade-mark is adopted by another even for a totally different class of goods, it is done to get the benefit of the reputation and advertisements of the originator of said mark, to convey to the public a false impression of some supposed connection between the manufacturer of the article sold under the original mark and the new articles being tendered to the public under the same or similar mark . . . The owner of a trademark or tradename has a property right in which he is entitled to protection, since there is damage to him in the form of confusion of reputation or goodwill in the mind of the public as well as from confusion of goods. (Emphasis supplied) In Sta. Ana v. Maliwat, 43 the Court, through J.B.L. Reyes, J., in holding that the use of the name "Flormen" with respect to shoes was infringement of the mark "Flormann" used in the men's wear such as shirts, polo shirts and pants, said: Modern law recognizes that the protection to which the owner of a trade-mark is entitled is not limited to guarding his goods or business from actual market competition with identical or similar products of the parties, but extends to all cases in which the use by a junior appropriator of a trade-mark or trade-name is likely to lead to a confusing of source, as where prospective purchasers would be misled into thinking that the complaining party has extended his business into the field (see 148 ALR 56 et seq; 52 Am. Jur. 576) or is in any way connected with the activities of the infringer; or when it forestalls the normal potential expansion of his business (v. 148 ALR, 77, 84; 52 Am. Jur. 576, 577). . . . . 44 (Emphasis supplied) Petitioners did not try to put a peso figure on their claimed damage arising from the erosion and possible eventual destruction of the symbolic value of their trademark. Such damage, while not easily quantifiable, is nonetheless real and effective. I submit, with respect, that such continuing damage falls clearly within the concept of irreparable damage or injury described in Social Security Commission v. Bayona 45 in the following terms: Damages are irreparable within the meaning of the rule relative to the issuance of injunction where there is no standard by which their amount can be measured with reasonable accuracy (Crouc v. Central Labor Council, 83 ALR, 193). "An irreparable injury which a court of equity will enjoin includes that degree of wrong of a repeated and continuing kind which produce hurt, inconvenience, or

damage that can be estimated only by conjecture, and not by any accurate standard of measurement" (Phipps v. Rogue River Valley Canal Co., 7 ALR, 741). An irreparable injury to authorize an injunction consists of a serious charge of, or is destructive to, the property if affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof' (Dunker v. Field and Tub Club, 92 P., 502). Respondent corporations made a lengthy discourse on the matter of irreparable injury they may suffer if the injunction were not issued, but the array of figures they have laid out merely succeeded in proving that the damage, if any they may suffer, is susceptible of mathematical computation. It is not then irreparable. As already stated, this term has a definite meaning in law. It does not have reference to the amount of damages that may be caused but rather to the difficulty of measuring the damages inflicted. If full compensation can be obtained by way of damages, equity will not apply the remedy of injunction (28 Am. Jur., 244; 43 C.J.S., 427, 446). 46 I next turn to private respondent's claim that issuance of an injunction would impose heavy damage upon itself and upon Government. As noted, private respondent stated that it had paid many millions of pesos as ad valorem and VAT taxes to the Government in 1988 and 1989 in connection with its "MARK" cigarettes. 47 Presumably, the total volume of its business associated with the manufacture and sale of cigarettes trademarked "MARK" would be even larger. In addition, private respondent suggests, albeit indirectly only, that hundreds if not thousands of its employees would find themselves unemployed if it were restrained from the manufacture and sale of "MARK" cigarettes. Private respondent's claims concerning alleged damages both to itself and to the Government, which obviously loomed very large in the mind of the majority here, and of the Court of Appeals when it lifted the injunction it had issued, appear to me to be extravagant indeed. Petitioners cannot claim to be entitled to an injunction which could restrain private respondent from manufacturing and selling cigarettes completely; petitioner do not pretend to be so entitled to such a comprehensive injunction. Petitioners seek only the reinstatement of the original injunction issued by the Court of Appeals, i.e., one that restrains private respondent from using the trademark "MARK" on its cigarettes. There is nothing to prevent private respondent from continuing to manufacture and sell cigarettes under any of its already existing and registered trademarks, of which it has several, or under some new and specially created trademark(s). Realistically, private respondent, if enjoined, would lose only the value of the packaging material imprinted with the same trademark (which cigarettes and

material may well be amenable to re-cycling) and the cost of past advertisements of "MARK" in media, if any. Thus, the apprehension on the part of the majority which private respondent tried diligently to foment that the Government would lose many millions of pesos in tax revenues and that many employees would lose their jobs, if an injunction is issued is more apparent than real. The damages private respondent would sustain from reinstatement of the preliminary injunction are clearly quantifiable in pesos. Besides, as pointed out by petitioners, to pay heed to private respondent's creative economic argument would ultimately mean that the greater the volume of sales and the profits of the infringer, the greater would be the infringer's claim to be entitled to continue infringement. I respectfully submit that the law should not countenance such a cynical result. My conclusion is that private respondent's claims concerning damage which it would sustain if the petitioners were granted the injunction they seek, did not constitute a sufficient basis for overturning the original decision of the Court of Appeals. The Resolution of the Court of Appeals granting private respondent's Motion to Dissolve, in effect disregarded everything that Court had set out in its original Decision. The mere offer and filing of a counterbond does not, by itself, provide a sufficient basis for lifting the preliminary injunction earlier granted. For all the elements which supported the original issuance of a preliminary injunction continued to exist. Private respondent's hyperbolic claims concerning the damages that it and the Government would sustain by reason of an injunction, had been made earlier both before the trial court and the Court of Appeals. Finally, it is not enough to say as private respondent says, that the Court of Appeals in granting its Motion to Dissolve the preliminary injunction was merely exercising its discretion; for the Court of Appeals obviously was also exercising its discretion when it rendered its original Decision granting the preliminary injunction. I vote to grant due course to the petition for Certiorari, to set aside the Resolution of the respondent Court of Appeals dated 14 September 1989 in C.A.-G.R. SP No. 13132 and to reinstate the Decision of that same Court dated 5 May 1989.

Mejoff vs Director of Prisons, 90 Phil 70, L- 4254 September 26, 1951 Facts : This is a second petition for habeas corpus by herein petitioner. Mejoff is an alien of Russian decent. He was brought to this country from Shanghai as a secret operative by the Japanese forces. Upon liberation, he was arrested as a Japanese spy. He was deported having been found out that he has no travel documents and his entry here in the Philippines was illegal. The Deportation Board ordered the immigration officials for his deportation on the first transportation to Russia. He was moved in Cebu where two Russian ships were scheduled, but each respective masters of the ship refused to take petitioner due to no authority to do so. Thus, respondent was moved again to Bilibid Prison, Muntinglupa. Since then and until the time this case was initiated he was still detained in the said jail. Issue : Whether or not an aliens prolonged detention is unlawful.

Held : Petitioners entry here in the Philippines was not illegal since he was brought here by the armed force of the then de facto government. The Philippines adopts the generally accepted principles of international law as part of the law of the Nation. Thus, in view of this principle the resolution entitled Universal Declaration of Human Rights approved by the general assembly of the United Nations , Philippines is a member. This provides the right to life and liberty and all other fundamental rights as applied to all human beings proclaimed without any distinction. It has been said that the petitioner was engaged in subversive activities. If the only purpose of the detention is to eliminate danger, government is not impotent to deal or prevent any threat. The prolonged detention of herein petitioner is not the only way of governments keeping our country safe and peaceful. The writ will issue commanding the respondent to release the petitioner from custody upon terms. The petitioner shall be placed under surveillance of the immigration authorities and insure that he keep peace and be available when the Government is ready to deport him. No cost will be charged.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after

receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a replyletter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition.

The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial

court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral

procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related

documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State

resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee

during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the

proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed noncompliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed,

the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or

like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or

requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to

believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 1012), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letterrequest dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the

Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these

contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to

present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion.

Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions VITUG, J., separate opinion; The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern.2 I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents. I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged substantive and procedural due process founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process the more litigated of the two

focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the everchanging milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. I vote to deny the petition.

KAPUNAN, J., separate concurring opinion; I vote to dismiss the petition, both on technical and substantial grounds. The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2 Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3 Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person

sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them. While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution. In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and

impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised. It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion; As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations. The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court in the exercise of its judicial power to find and state what the law is has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties. Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion; I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives. I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later. Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are: 1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available. 2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. 3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal

law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously. I respectfully submit that any apprehensions in the Court arising from a denial of the petition "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution. Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured

orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel. Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines. Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated. There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him. Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process. In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided. The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1wphi1.nt In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion; If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our

esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion. Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida. A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the dutyto surrender an extraditee whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed

a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligationwhich could become enforceable only by a contract or agreement between states.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ." Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice

Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law. We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments,the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, thePresident has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and

scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant andthe President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which theextraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17 The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonizationbetween said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendorespondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima faciecase."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted ahighly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition.Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides: PROVISIONAL ARREST 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. 2. The application for provisional arrest shall contain: a) a description of the person sought; b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and location of the offense; d) a description of the laws violated; e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. In relation to the above, Section 20 of P.D. No. 1069 provides: Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. (d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz: WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations; WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . . The increasing incidence of international and transnational crimes, the development of new technologies of death,and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity.

The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes. I vote to grant the petition.

PANGANIBAN, J., dissenting opinion; With due respect, I dissent. The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him. Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the

prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under nonmilitary penal legislation.2 Upon a finding of 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 justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3 When the Right to Notice and Hearing Becomes Available According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides: No person shall be deprived of life, liberty or property without due process of law. He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court. However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by

the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10 Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.1wphi1.nt The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect. The Need for Respondent Jimenez to Face Charges in the US One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him

are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. Conclusion In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process particularly the right to be heard finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. WHEREFORE, I vote to grant the Petition.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-49112 February 2, 1979 LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.: The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its implementation are concerned, for transgressing the fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed. The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas],

statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a preregistration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning

Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications.10 Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well provide a practical alternative road safety device, or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile. A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16

Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied. This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed. 1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case

of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force,Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24 2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety. 3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent

considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29 4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant for exaggeration. 5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early seaming device

installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31 6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it. 32 7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary. For they, according to

Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33 8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of nondelegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of the practice by the courts.'

Consistency with the conceptual approach requires the reminder that what is delegated is authority non-legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34 9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. 10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38"Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs. Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur. Makasiar, J, reserves the right to file a separate opinion. Aquino J., took no part. Concepcion J., is on leave. Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the socalled early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of

1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

# Separate Opinions TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the socalled early warning device, without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is

oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-65366 November 9, 1983 JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent. Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner. The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1 This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor

General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8 The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter. 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme

Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's

destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta. 4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses,

to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31 5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the AntiBases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free

speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court. 6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."37 7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing

authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression. 8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of

such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. 9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs. Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur. De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring: The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro. The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. " It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse action on the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As

stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 t.hqw Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. * * * Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for) effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis supplied) The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating: t.hqw * * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen * * * to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative,

and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made theinstrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. (Emphasis supplied) Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same, concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion inFugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly, thus: t.hqw It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible followers.But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultous rising against the authorities, 'then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of

disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied). As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring: With the justification that in case of conflict, the Philippine Constitution particularly the Bill of Rights should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring: To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for the record that I voted for the issuance exparte of a preliminary mandatory injunction.

PLANA, J., concurring: On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent. The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic Relations. In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of any

foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration. AQUINO, J., dissenting: Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring: The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro. The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy," The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse action on the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 t.hqw Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. * * * Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for) effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis supplied) The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's

pronouncement in Hague vs. Committee for Industrial Organization Fugoso is worth repeating: t.hqw

cited in

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen * * * to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made theinstrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. (Emphasis supplied) Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same, concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion inFugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly, thus: t.hqw It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the

grievance and the more intense the feeling, the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible followers.But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultous rising against the authorities, 'then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied). As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring: With the justification that in case of conflict, the Philippine Constitution particularly the Bill of Rights should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring: To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for the record that I voted for the issuance exparte of a preliminary mandatory injunction.

PLANA, J., concurring: On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic Relations. In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting: Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance No. 7295 of the City of Manila.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents. DECISION AUSTRIA-MARTINEZ, J.: The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained? Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement. Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency. 1 Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006. However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction. The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3 On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR. After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit: The Court hereby sets the following issues: 1. Whether or not petitioner is a real party-in-interest; 2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional; 2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code); 2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international agreements; 2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and 2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________ 1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions. The parties filed their respective memoranda. The petition is partly imbued with merit. On the issue of petitioner's standing With regard to the issue of whether petitioner may prosecute this case as the real partyin-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 instruments10 regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may implement them through the RIRR. The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes. The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA Resolutions. Under the 1987 Constitution, international law can become part of the sphere of domestic law either bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law.12 Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go

through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.13 The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution. However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se. The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC). On the other hand, Section 2, Article II of the 1987 Constitution, to wit: SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied) embodies the incorporation method.14 In Mijares v. Ranada,15 the Court held thus: [G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis supplied) "Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x 21 (Emphasis supplied) Fr. Joaquin G. Bernas defines customary international law as follows: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological orsubjective factor, that is, why they behave the way they do. xxxx The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states. The required duration can be either short or long. x x x xxxx Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x xxxx Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.22 (Underscoring and Emphasis supplied) Clearly, customary international law is deemed incorporated into our domestic system. 23 WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar products moving in international commerce,"27 and to "make recommendations to members with respect to any matter within the competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite different. Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus: Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes. Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance with Chapter XIV. Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce. Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice. (Emphasis supplied) On the other hand, under Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions or agreements under Article

19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization. (Emphasis supplied) The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is conspicuous. The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest international body in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states: "The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied) The Introduction to the ICMBS also reads as follows: In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied) The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit: Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the Organization, and with respect to conventions, agreements and regulations. Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law. It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. 32 It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38 The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to the changing needs and demands of its constituents."39 Other international organizations which have resorted to soft law include the International Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).40 WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks. Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law." WHO has during its existence generated many soft law norms, creating a "soft law regime" in international governance for public health. The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks. This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of general and consistent state practice on infectious disease surveillance and outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and control. 41 In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS and Avian flu by issuing

Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and agricultural products. It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still considered not binding or enforceable, although said resolutions had great political influence. As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature. Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the absence of a domestic law. Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders and regulations concerning the implementation of established health policies. It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health policy. Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is

emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited. The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on advertising for breastmilk substitutes. In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature. Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR. Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code. In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following: 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or those from ages two years old and beyond: MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 2. Purpose These Revised Rules and Regulations are hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young children by the promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through SECTION 4(e). "Infant" means a person appropriate marketing and distribution. falling within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to the age of three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk": MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: a. Exclusive breastfeeding is for infants from 0 to six (6) months. b. There is no substitute or replacement for breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is vague: MILK CODE SECTION 6. The General Public and Mothers. (a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an interagency committee created herein pursuant to the applicable standards provided for in this Code. RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: xxxx f. Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited. Section 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk substitutes intended for infants and young children up to twentyfour (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that

undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code. Section 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim. Section 15. Content of Materials. - The following shall not be included in advertising, promotional and marketing materials: a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In this connection, no pictures of babies and children together with their mothers, fathers, siblings, grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant formula and breastmilk supplements; b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing breastmilk substitutes or milk supplements; c. Pictures or texts that idealize the use

of infant and milk formula. Section 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed. 4. The RIRR imposes additional labeling requirements not found in the Milk Code: MILK CODE SECTION 10. Containers/Label. RIRR Section 26. Content Each container/label shall contain such message, in both Filipino and English (a) Containers and/or labels shall be languages, and which message cannot designed to provide the necessary information about the appropriate use of be readily separated therefrom, relative the products, and in such a way as not to the following points: discourage breastfeeding. (a) The words or phrase "Important Notice" or "Government Warning" or their (b) Each container shall have a clear, equivalent; conspicuous and easily readable and understandable message in Pilipino or English printed on it, or on a label, which (b) A statement of the superiority of message can not readily become breastfeeding; separated from it, and which shall include the following points: (c) A statement that there is no substitute for breastmilk; (i) the words "Important Notice" or their equivalent; (d) A statement that the product shall be used only on the advice of a health (ii) a statement of the superiority of worker as to the need for its use and the breastfeeding; proper methods of use; (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. (e) Instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation; and (f) The health hazards of unnecessary or improper use of infant formula and other related products including information that powdered infant formula may

contain pathogenic microorganisms and must be prepared and used appropriately. 5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity: MILK CODE SECTION 7. Health Care System. RIRR Section 22. No manufacturer, distributor, or representatives of products covered (b) No facility of the health care system by the Code shall be allowed to conduct or be involved in any activity on shall be used for the purpose of breastfeeding promotion, education and promoting infant formula or other production of Information, Education and products within the scope of this Communication (IEC) materials on Code. This Code does not, however, preclude the dissemination of information breastfeeding, holding of or participating as speakers in classes or seminars for to health professionals as provided in women and children activities and to Section 8(b). avoid the use of these venues to market their brands or company names. SECTION 8. Health Workers. (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). SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health professionals; RIRR absolutely forbids the same. MILK CODE SECTION 8. Health Workers (e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals, in accordance with the rules and regulations RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: i. Milk companies, and their representatives,should not form part of

promulgated by the Ministry of Health.

any policymaking body or entity in relation to the advancement of breasfeeding. SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activitiesand to avoid the use of these venues to market their brands or company names. SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health workers to promote, protect and support breastfeeding and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No assistance, support, logistics or training from milk companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it. MILK CODE SECTION 6. The General Public and Mothers. (f) Nothing herein contained shall prevent donations from manufacturers and distributors of products within the scope of this Code upon request by or with the approval of the Ministry of Health. RIRR Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited. Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives,

whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise. 8. The RIRR provides for administrative sanctions not imposed by the Milk Code. MILK CODE RIRR Section 46. Administrative Sanctions. The following administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations: a) 1st violation Warning; b) 2nd violation Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the offending product; c) 3rd violation Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR); d) 4th violation Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate (LTO) for one year; e) 5th and succeeding repeated violations

 Administrative Fine of One Million (P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI); f) An additional penalty of Two Thousand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other such appropriate body, notifying and penalizing the company for the infraction. For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone. 9. The RIRR provides for repeal of existing laws to the contrary. The Court shall resolve the merits of the allegations of petitioner seriatim. 1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code states: SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information concerning their use. Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the public. The law treats infant formula, bottle-

fed complementary food, and breastmilk substitute as separate and distinct product categories. Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottlefed complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and protected by the Milk Code. But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose."This section conspicuously lacks reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children more than 12 months old. Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by children aged over 12 months. There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR. 2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk. The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole." Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials should include information on the proper use of infant formula when the use thereof is needed. Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other. To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code. Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it. .48 However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49 As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information was already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases." Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the right to health of the people and instill health consciousness among them."52 To that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health information and educate the population on important health, medical and environmental matters which have health implications."53 When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on breastfeeding and use of breastmilk substitutes, supplements and related products; and the power to control such information. These are expressly provided for in Sections 12 and 5(a), to wit: SECTION 12. Implementation and Monitoring xxxx (b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the accomplishment of its purposes and objectives. xxxx (4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the purposes and objectives of this Code. SECTION 5. Information and Education (a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied) Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following manner: SECTION 5. x x x (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. SECTION 8. Health Workers xxxx (b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such information shall not

imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b). SECTION 10. Containers/Label (a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding. xxxx (d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied) The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under Sections 6 through 9 of the Milk Code54 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 the scope of this Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5.58 (Emphasis supplied) and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding. It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and dissemination of information on infant feeding. Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code. Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads: SECTION 5. x x x xxxx (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied) The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present in infant formula and other related products when these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology that allows production of powdered infant formula that eliminates all forms of contamination.62 Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code. The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner. In furtherance of Section 6(a) of the Milk Code, to wit: SECTION 6. The General Public and Mothers. (a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code. the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus: SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby created: Minister of Health Minister of Trade and Industry Minister of Justice Minister of Social Services and Development ------------------------------------------------------------------------Chairman Member Member Member

The members may designate their duly authorized representative to every meeting of the Committee. The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code; (2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code; (3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the performance of its duties and responsibilities; and (4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a) of this Code. x x x (Emphasis supplied) However, Section 11 of the RIRR, to wit: SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code. prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit: SECTION 4. Declaration of Principles xxxx (f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited. The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing. Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz: SOLICITOR GENERAL DEVANADERA: xxxx x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x. We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter agency committee that is empowered to process and evaluate all the advertising and promotion materials. xxxx What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the promotions of breastfeeding milk substitutes. xxxx Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that processes and evaluates because there may be some information dissemination that are straight forward information dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO: Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes? SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO: x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the rules and regulations? SOLICITOR GENERAL DEVANADERA: Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is under the Department of Health, Your Honor. xxxx ASSOCIATE JUSTICE NAZARIO: x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the Revised Rules? SOLICITOR GENERAL DEVANADERA: Yes, your Honor. ASSOCIATE JUSTICE NAZARIO: But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children two (2) years old and younger? SOLICITOR GENERAL DEVANADERA: It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine breastfeeding, Your Honor. xxxx x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO: So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2) years below? SOLICITOR GENERAL DEVANADERA: We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been set. One of which is that, the InterAgency Committee can allow if the advertising and promotions will not undermine breastmilk and breastfeeding, Your Honor.63 Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code. However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder: SECTION 5. Information and Education xxxx (b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. xxxx SECTION 8. Health Workers. xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b). xxxx SECTION 10. Containers/Label (a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding. (b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and which shall include the following points: (i) the words "Important Notice" or their equivalent; (ii) a statement of the superiority of breastfeeding; (iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use; and (iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation. Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that: SECTION 5. Information and Education (a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied) Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows: SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim. Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC may screen such materials before they are made public. In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held: x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65 In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare. 4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health professionals but suchinformation is restricted to scientific and factual matters. Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination of information to health professionals, as restricted by the Milk Code. 5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to extend assistance in research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely

forbid the same. Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in relation to the advancement of breastfeeding. Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in relation to the advancement of breastfeeding is in accord with the Milk Code. Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not pertain to research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for research or continuing education to health professionals; hence, petitioner's argument against this particular provision must be struck down. It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide thatresearch assistance for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements imposed on the milk company and on the recipient of the research award. The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or extent of assistance given by milk companies are completely in accord with the Milk Code. Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support, logistics or training to health workers. This provision is within the prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH. 6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of donations. The Milk

Code leaves it purely to the discretion of the DOH whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 51 75 of the RIRR which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes. It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations. 7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds petitioner's objection thereto. Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines. In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties. In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void. The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit: SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons directly responsible therefor, shall be penalized. (b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis supplied) 8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous. Section 57 reads: SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised rules and implementing regulations are hereby repealed or modified accordingly. Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power. An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers.78 Such express grant of rulemaking power necessarily includes the power to amend, revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by which they are to implement the provisions of a law, 80 in order to make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or modified. In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code. Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a provision therein is inadequate to provide the public with a comprehensible basis to determine whether or not they have committed a violation.81 (Emphasis supplied) Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and, thus, violate the due process clause of the Constitution. The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus: x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not call for removal of protective regulations." x x x It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring supplied] In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade. Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the definition of the term "milk company," to wit: SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their representatives who promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides: (d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor or broker. xxxx (j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business or function (whether directly or indirectly or through an agent or and entity controlled by or under contract with it) of manufacturing a products within the scope of this Code. Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the scope of this Code." Those are the only differences between the definitions given in the Milk Code and the definition as re-stated in the RIRR. Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the Milk Code are practically the same. The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution. WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions. The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.

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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for

extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions

of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 2425). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation

(tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the

provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of

property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate

threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fasttracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings

are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to

information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the

judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"?

Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot

dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion.

Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions VITUG, J., separate opinion; The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern. 2 I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents. I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is twopronged substantive and procedural due process founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process the more litigated of the two focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would

seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. I vote to deny the petition.

KAPUNAN, J., separate concurring opinion; I vote to dismiss the petition, both on technical and substantial grounds. The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to: . . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2 Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3 Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them. While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution. In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised. It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. 4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a

substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion; As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations. The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. For this primordial reason, I vote to DENY the petition. Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court in the exercise of its judicial power to find and state what the law is has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties. Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather

than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion; I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives. I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are: 1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available. 2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. 3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously. I respectfully submit that any apprehensions in the Court arising from a denial of the petition "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution. Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know.

Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel. Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines. Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated. There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process. In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided. The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasijudicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1wphi1.nt In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion; If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion. Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida. A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations." 2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the dutyto surrender an extraditee whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that

international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligationwhich could become enforceable only by a contract or agreement between states.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ." Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation

and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law. We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments,the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, thePresident has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant andthe President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation

lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which theextraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17 The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonizationbetween said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy. Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendorespondent's

weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima faciecase."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted ahighly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition.Respondent's fear of provisional arrest is not real. It is a selfimagined fear for the realities on the ground show that the United States authorities

have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides: PROVISIONAL ARREST 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. 2. The application for provisional arrest shall contain: a) a description of the person sought; b) the location of the person sought, if known; c) a brief statements of the facts of the case, including, if possible, the time and location of the offense; d) a description of the laws violated; e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. (d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his

extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities. 25Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz: WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations; WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new technologies of death,and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes. I vote to grant the petition.

PANGANIBAN, J., dissenting opinion; With due respect, I dissent. The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him. Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required

under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2 Upon a finding of 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 justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3 When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides: No person shall be deprived of life, liberty or property without due process of law. He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads: In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court. However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during

the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10 Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.1wphi1.nt The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect. The Need for Respondent Jimenez to Face Charges in the US One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is

to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. Conclusion In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process particularly the right to be heard finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. WHEREFORE, I vote to grant the Petition.

EN BANC

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

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents. DECISION KAPUNAN, J.: At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols around the metropolis. In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro Manila. Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime prevention program including increased police patrols. [4] The President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence.[6]Finally, the President declared that the services of the Marines in the anticrime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved.[7]

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: xxx 2. PURPOSE: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security. 3. SITUATION: Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel. 4. MISSION: The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are welltrained, disciplined and well-armed active or former PNP/Military personnel. 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP. b. The principle of integration of efforts shall be applied to eradicate all forms of highprofile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation. xxx.[8] The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9] On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that: I THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT: A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION; C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT. II IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10] Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement. Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines, contending, among others, that petitioner has no

legal standing; that the question of deployment of the Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution. The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP. The petition has no merit. First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis motaof the case.[12]

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

issues upon which the court depends for illumination of difficult constitutional questions.[15] In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. Based on the standards abovestated, the IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the National President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action. To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed militarization of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the presumed injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy. Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.[17] Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face

again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop [Marine] deployment.[19] The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are beyond the review powers of this Court. As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of judicial review. But, while this Court gives considerable weight to the parties formulation of the issues, the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised by the President is the power to call out the armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the general welfare.[20] For one, the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus: More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commanderin-chief the enumeration of powers that follow cannot be said to exclude the Presidents

exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. xxx[21] Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result. We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the judiciary because it involves a political question, and thus, not justiciable. As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are political questions. The reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on the one question. The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the Government.[25] Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.[28] By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse of discretion.[30] A showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy.[31] When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Courts duty of purposeful hesitation [32] before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Presidents judgment. To doubt is to sustain. There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. xxx The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus: xxx Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the Presidents action to call out the armed forces. The distinction places the

calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit: FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence. When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. xxx FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger. MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea? MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34] The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression

of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpusor to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the Presidents exercise of judgment deserves to be accorded respect from this Court. The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the

recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force. Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in violation of Section 3, Article II [36] of the Constitution. We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their responsibility to direct and manage the deployment of the Marines. [39] It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41] In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP. Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no insidious

incursion of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally civil functions. As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are: 1. Elections;[42] 2. Administration of the Philippine National Red Cross;[43] 3. Relief and rescue operations during calamities and disasters;[44] 4. Amateur sports promotion and development;[45] 5. Development of the culture and the arts;[46] 6. Conservation of natural resources;[47] 7. Implementation of the agrarian reform program;[48] 8. Enforcement of customs laws;[49] 9. Composite civilian-military law enforcement activities;[50] 10. Conduct of licensure examinations;[51] 11. Conduct of nationwide tests for elementary and high school students; [52] 12. Anti-drug enforcement activities;[53] 13. Sanitary inspections;[54] 14. Conduct of census work;[55] 15. Administration of the Civil Aeronautics Board;[56] 16. Assistance in installation of weather forecasting devices;[57] 17. Peace and order policy formulation in local government units.[58] This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy. In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic purposes has persisted, [60] and whose Constitution, unlike ours, does not expressly provide for the power to call, the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those surrounding the present deployment of the Philippine Marines. Under thePosse

Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act states: 1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62] To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts[63] apply the following standards, to wit: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively? x x x When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied) Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General: 3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment

of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement.[71] It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the Presidents determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence. One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their midst. WHEREFORE, premises considered, the petition is hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur. Bellosillo, J., on official leave. Puno, J., see separate opinion. Vitug, J., see separate opinion. Mendoza, J., see concurring and dissenting opinion. Panganiban, J., in the result. Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION PUNO, J.: If the case at bar is significant, it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-in-chief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid

back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government.1 The importance of the issue at bar includes this humble separate opinion. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of history. Political questions are defined as those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government, with discretionary power to act.3 The exercise of the discretionary power of the legislative or executive branch of government was often the area where the Court had to wrestle with the political question doctrine.4 A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the Governor-General) branches of government acted in suspending the privilege of the writ. The Court ruled that under our form of government, one department has no authority to inquire into the acts of another, which acts are performed within the discretion of the other department.6 Surveying American law and jurisprudence, it held that whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus, this power is exclusively within the discretion of the legislative and executive branches of government. The exercise of this discretion is conclusive upon the courts.8 The Court further held that once a determination is made by the executive and legislative departments that the conditions justifying the assailed acts exists, it will presume that the conditions continue until the same authority decide that they no longer exist.9 It adopted the rationalethat the executive branch, thru its civil and military branches, are better situated to obtain information about peace and order from every corner of the nation, in contrast with the judicial department, with its very limited machinery.10 The seed of the political question doctrine was thus planted in Philippine soil.

The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature. The Court refused to interfere in the legislative exercise of disciplinary power over its own members. In the 1924 case ofAlejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process."12 The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership. In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment to the Constitution. If their votes had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of Congress to pass the amendment. The amendment was eventually submitted to the people for ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity.15 In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process and the legislature's exercise of its discretionary authority is not subject to judicial interference. In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members.

The contours of the political question doctrine have always been tricky. To be sure, the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the latter had been elected without a quorum. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review. 19 On reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate President. In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes. In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution. The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled: "It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfied the threefourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the

party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues therein raised were political questions the determination of which is beyond judicial review.27 The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly, the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly.29 In sum, this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature.30 The Court hewed to the same line as regards the exercise of Executive power. Thus, the respect accorded executive discretion was observed in Severino v. Governor-General,31 where it was held that the Governor-General, as head of the executive department, could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department, and with full confidence that he will perform such duties as his best judgment dictates.32 Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission. Under the principle of separation of powers, it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. Each department has an exclusive field within which it can perform its part within certain discretionary limits.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions, with which the judicial department of government has no intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department; such questions being many times reserved to those departments in the organic law of the state."35 In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the

Philippines was found by him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The President's inherent power to deport undesirable aliens is universally denominated as political, and this power continues to exist for the preservation of the peace and domestic tranquility of the nation. 37 In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the President's appointing power. It held that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office. We now come to the exercise by the President of his powers as Commanderin-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the Armed Forces, the President has the power to determine whether war, in the legal sense, still continues or has terminated. It ruled that it is within the province of the political department and not of the judicial department of government to determine when war is at end.39 In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision isfinal and conclusive on the courts.41 Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended by the American Governor-General whose act, as representative of the sovereign affecting the freedom of its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people. The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is defined by these limitations.43 On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the President has gone beyond the constitutional limits

of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the President did not act arbitrarily.44 Using this yardstick, the Court found that the President did not. The emergency period of the 1970's flooded the Court with cases which raised the political question defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect, with or without constitutional ratification, was a political question.46 The validity of the declaration of martial law by then President Marcos was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On whether the validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly divided. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine used different methods of approach to it.48 In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national emergency, the President must be given absolute control for the very life of the nation and government is in great peril. The President, it intoned, is answerable only to his conscience, the people, and God.51 But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up to the moment the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met.53 It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA. Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. The first was the need to grant this Court the express

power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads: "Sec. 1. x x x. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government. We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional history. The provision states: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. x x x."

It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. They define the constitutional parameters of the calling out power. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question. I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political question and therefore not subject to judicial review. It must be borne in mind, however, that while a member's opinion expressed on the floor of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55 The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people. 57 It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however, that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise. Given the light of our constitutional history, this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine. It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the "political" and the "justiciable. " 58 We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved.60Every officer under a constitutional government must act according to law and subject to the controlling power of the people, acting through the courts, as well as through the executive and legislative. One department is just as representative of the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action.61 This historic role of the Court is the foundation stone of a government of laws and not of men.62 I join the Decision in its result.

SEPARATE OPINION VITUG, J.: In the equation of judicial power, neither of two extremes - one totalistic and the other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power" to be that which x x x includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.1 It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its mandate. But while this Court does not wield unlimited authority to strike down an act of its two co-equal branches of government, it must not wither under technical guise on its constitutionally ordained task to intervene, and to nullify if need be, any such act as and when it is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then against an interposition by the Court into purely political questions, heretofore known, no longer holds within that context.

Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion: "x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well." 3 It is here when the Court must have to depart from the broad principle of separation of powers that disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate agencies of government. The term grave abuse of discretion is long understood in our jurisprudence as being, and confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the act of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative, to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I believe, constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law. Accordingly, I vote for the dismissal of the petition. MENDOZA, J., concurring and dissenting: I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case on other grounds. I submit that judgment on the substantive constitutional issues raised by petitioner must await an actual case involving real parties with "injuries" to show as a result of the operation of the challenged executive action. While as an organization for the advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing. As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature; (2) there must be a causal connection between the injury and the conduct complained of; and (3) the injury is likely to be redressed by a favorable action by this Court.1 The "injury in fact" test requires more than injury to a cognizable interest. It requires that the party seeking review be himself among those injured.2 My insistence on compliance with the standing requirement is grounded in the conviction that only a party injured by the operation of the governmental action challenged is in the best position to aid the Court in determining the precise nature of the problem presented. Many a time we have adverted to the power of judicial review

as an awesome power not to be exercised save in the most exigent situation. For, indeed, sound judgment on momentous constitutional questions is not likely to be reached unless it is the result of a clash of adversary arguments which only parties with direct and specific interest in the outcome of the controversy can make. This is true not only when we strike down a law or official action but also when we uphold it. In this case, because of the absence of parties with real and substantial interest to protect, we do not have evidence on the effect of military presence in malls and commercial centers, i.e., whether such presence is coercive or benign. We do not know whether the presence of so many marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of troops to such places is not like parading them at the Luneta on Independence Day. Neither is it, however, like calling them out because of actual fighting or the outbreak of violence. We need to have evidence on these questions because, under the Constitution, the President's power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is subject to the limitation that the exercise of this power is required in the interest of public safety.3 Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a factual showing of perceptible harm." 5 Because of the absence of such record evidence, we are left to guess or even speculate on these questions. Thus, at one point, the majority opinion says that what is involved here is not even the calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At another point, however, the majority opinion somersaults and says that because of bombings perpetrated by lawless elements, the deployment of troops in shopping centers and public utilities is justified. (p. 24) We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution, just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in the Angara case, "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented."6 We are told, however, that the issues raised in this case are of "paramount interest" to the nation. It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence.

For these reasons and with due appreciation of the scholarly attention lavished by the majority opinion on the constitutional questions raised, I am constrained to limit my concurrence to the dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an actual case or controversy.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TRANQUILINO LAGMAN, defendant-appellant. ----------------------------G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMITIVO DE SOSA, defendant-appellant. Severino P. Izon for appellants. Office of the Solicitor-General Tuason for appellee. AVANCEA, J.: In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936, willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The evidence shows that these two appellants were duly notified by the corresponding authorities to appear before the Acceptance Board in order to register for military service in accordance with law, and that the said appellants, in spite of these notices, had not registered up to the date of the filing of the information. The appellants do not deny these facts, but they allege in defense that they have not registered in the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to support, and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish to kill or be killed. Each of these appellants was sentenced by the Court of First Instance to one month and one day of imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the Philippines provides as follows: SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service. The National Defense Law, in so far as it establishes compulsory military service, does not go against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein.1vvphl.nt In the United States the courts have held in a series of decisions that the compulsory military service adopted by reason of the civil war and the world war does not violate the Constitution, because the power to establish it is derived from that granted to Congress to declare war and to organize and maintain an army. This is so because the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of property without due process of law, because, in its just sense, there is no right of property to an office or employment. The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service is the defense of the State, whether actual or whether in preparation to make it more effective, in case of need. The circumstance that the appellants have dependent families to support does not excuse them from their duty to present themselves before the Acceptance Board because, if such circumstance exists, they can ask for determent in complying with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1). The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So ordered. Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TRANQUILINO LAGMAN, defendant-appellant. ----------------------------G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMITIVO DE SOSA, defendant-appellant. Severino P. Izon for appellants. Office of the Solicitor-General Tuason for appellee. AVANCEA, J.: In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936, willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The evidence shows that these two appellants were duly notified by the corresponding authorities to appear before the Acceptance Board in order to register for military service in accordance with law, and that the said appellants, in spite of these notices, had not registered up to the date of the filing of the information. The appellants do not deny these facts, but they allege in defense that they have not registered in the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to support, and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish to kill or be killed. Each of these appellants was sentenced by the Court of First Instance to one month and one day of imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the Philippines provides as follows: SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service. The National Defense Law, in so far as it establishes compulsory military service, does not go against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein.1vvphl.nt In the United States the courts have held in a series of decisions that the compulsory military service adopted by reason of the civil war and the world war does not violate the Constitution, because the power to establish it is derived from that granted to Congress to declare war and to organize and maintain an army. This is so because the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of property without due process of law, because, in its just sense, there is no right of property to an office or employment. The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service is the defense of the State, whether actual or whether in preparation to make it more effective, in case of need. The circumstance that the appellants have dependent families to support does not excuse them from their duty to present themselves before the Acceptance Board because, if such circumstance exists, they can ask for determent in complying with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1). The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So ordered. Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

EN BANC

[G.R. No. 157036. June 9, 2004]

FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP, et al., respondents. DECISION SANDOVAL-GUTIERREZ, J.: The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of peace and order[1] and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties. Before us is a petition for prohibition and injunction seeking to enjoin the implementation of the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the Philippine National Police (PNP). The facts are undisputed: In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus: THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF JUSTICE. THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES. THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC

PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE. WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE. Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines quoted as follows: TO FROM : : SUBJECT All Concerned Chief, PNP : Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence.

DATE 1.

January 31, 2003

Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.

2.

General: The possession and carrying of firearms outside of residence is a privilege granted by the State to its citizens for their individual protection against all threats of lawlessness and security. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or MR) are prohibited from carrying their firearms outside of residence. However, the Chief, Philippine National Police may, in meritorious cases as determined by him and under conditions as he may impose, authorize such person or persons to carry firearms outside of residence.

3.

Purposes: This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also prescribes the conditions,

requirements and procedures under which exemption from the ban may be granted. 4. Specific Instructions on the Ban on the Carrying of Firearms: a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed. b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees. 5. The following persons may be authorized to carry firearms outside of residence. a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger. b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days. c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration. d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person. e. Authorized members of the Diplomatic Corps. 6. Requirements for issuance of new PTCFOR: a. Written request by the applicant addressed to Chief, PNP stating his qualification to possess firearm and the reasons why he needs to carry firearm outside of residence.

b. Xerox copy of current firearm license duly authenticated by Records Branch, FED; c. Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or City Directors and duly validated by C, RIID; d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied; e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied; f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied; g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, Operations Branch, FED; h. NBI Clearance; i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of filing of application; and Proof of Payment

j. 7.

Procedures: a. Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In the provinces, the applications may also be submitted to the Police Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the office of the PTCFOR Secretariat. The processors, after ascertaining that the documentary requirements are in order, shall issue the Order of Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay the fees to the Land Bank. b. Applications, which are duly processed and prepared in accordance with existing rules and regulations, shall be forwarded to the OCPNP for approval. c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date of issue. d. Applications for renewal of PTCFOR shall be processed in accordance with the provisions of par. 6 above. e. Application for possession and carrying of firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP Memo dated

September 25, 2000, with Subj: Possession and Carrying of Firearms by Diplomats in the Philippines. 8. Restrictions in the Carrying of Firearms: a. The firearm must not be displayed or exposed to public view, except those authorized in uniform and in the performance of their official duties. b. The firearm shall not be brought inside public drinking and amusement places, and all other commercial or public establishments. Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, requested the Department of Interior and Local Government (DILG) to reconsider the implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives Division. He anchored his petition on the following grounds: I THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES. II OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS. III THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED GUIDELINES BECAUSE: 1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.

2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.

3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN. IV ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO ISSUE THE SAME BECAUSE 1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ AND THE DILG. 2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF THE PHILIPPINE CONSTABULARY. V THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION BECAUSE: 1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR: A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF. B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE. 2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST CAUSE. VI ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.

VII THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR. VIII THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY, AND NPA) UNTOUCHED. IX THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED. X THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION. Petitioners submissions may be synthesized into five (5) major issues: First, whether respondent Ebdane is authorized to issue the assailed Guidelines; Second, whether the citizens right to bear arms is a constitutional right?; Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a violation of his right to property?; Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and Fifth, whether the assailed Guidelines constitute an ex post facto law? The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law. Initially, we must resolve the procedural barrier.

On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not an iron-clad dictum. In several instances where this Court was confronted with cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of the cases. [3] The case at bar is of similar import as it involves the citizens right to bear arms. I

Authority of the PNP Chief Relying on the principle of separation of powers, petitioner argues that only Congress can withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane transgressed the settled principle and arrogated upon themselves a power they do not possess the legislative power. We are not persuaded. It is true that under our constitutional system, the powers of government are distributed among three coordinate and substantially independent departments: the legislative, the executive and the judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within its own sphere.[4] Pertinently, the power to make laws the legislative power is vested in Congress.[5] Congress may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that delegata potestas non potest delegari delegated power may not be delegated.[6] The rule which forbids the delegation of legislative power, however, is not absolute and inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the legislative body to delegate its licensing power to certain persons, municipal corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and directors.[7] Such licensing power includes the power to promulgate necessary rules and regulations.[8] The evolution of our laws on firearms shows that since the early days of our Republic, the legislatures tendency was always towards the delegation of power. Act No. 1780,[9] delegated upon the Governor-General (now the President) the authority (1) to approve or disapprove applications of any person for a license to deal in firearms or to possess the same for personal protection, hunting and other lawful purposes; and (2) to revoke such license any time.[10] Further, it authorized him to issue regulations which he may deem necessary for the proper enforcement of the Act. [11] With the enactment of Act No. 2711, the Revised Administrative Code of 1917, the laws on firearms were integrated.[12] The Act retained the authority of the Governor General provided in Act No. 1780. Subsequently, the growing complexity in the Office of the Governor-General resulted in the delegation of his authority to the Chief of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater issued Executive Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his behalf inapproving

and disapproving applications for personal, special and hunting licenses. This was followed by Executive Order No. 61[14]designating the Philippine Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives. Executive Order No. 215,[15] issued by President Diosdado Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove applications for personal, special and hunting license, but also the authority to revoke the same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866[16] perpetuate such authority of the Chief of the Constabulary. Section 2 specifically provides that any person or entity desiring to possess any firearm shall first secure the necessary permit/license/authority from the Chief of the Constabulary. With regard to the issuance of PTCFOR, Section 3 imparts: The Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence. These provisions are issued pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations for the effective implementation of the decree.[17] At this juncture, it bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his legislative power.[18] In an attempt to evade the application of the above-mentioned laws and regulations, petitioner argues that the Chief of the PNP is not the same as the Chief of the Constabulary, the PC being a mere unit or component of the newly established PNP. He contends further that Republic Act No. 8294[19] amended P.D. No. 1866 such that the authority to issue rules and regulations regarding firearms is now jointly vested in the Department of Justice and the DILG, not the Chief of the Constabulary. [20] Petitioners submission is bereft of merit. By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms and explosives in accordance with law.[22] This is in conjunction with the PNP Chiefs power to issue detailed implementing policies and instructions on such matters as may be necessary to effectively carry out the functions, powers and duties of the PNP.[23] Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue rules and regulations regarding firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6

of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and reintegration of the convicts into the community. Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed guidelines. Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban, arguing that she has no authority to alter, modify, or amend the law on firearms through a mere speech. First, it must be emphasized that President Arroyos speech was just an expression of her policy and a directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted a law through a mere speech. Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the Constitution specifies his power as Chief Executive, thus: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that controls the course of her government. She lays down policies in the execution of her plans and programs. Whatever policy she chooses, she has her subordinates to implement them. In short, she has the power of control. Whenever a specific function is entrusted by law or regulation to her subordinate, she may act directly or merely direct the performance of a duty.[24] Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well within the prerogative of her office. II

Right to bear arms: Constitutional or Statutory? Petitioner earnestly contends that his right to bear arms is a constitutionallyprotected right. This, he mainly anchors on various American authorities. We therefore find it imperative to determine the nature of the right in light of American jurisprudence. The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not only the American Constitution but also the discovery of firearms.[25] A provision commonly invoked by the American people to justify their possession of firearms is the Second Amendment of the Constitution of the United States of America, which reads: A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear Arms, shall not be infringed.

An examination of the historical background of the foregoing provision shows that it pertains to the citizens collective right to take arms in defense of the State, not to the citizens individual right to own and possess arms. The setting under which the right was contemplated has a profound connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed is evident in early American cases. The first case involving the interpretation of the Second Amendment that reached the United States Supreme Court is United States vs. Miller.[26] Here, the indictment charged the defendants with transporting an unregistered Stevens shotgun without the required stamped written order, contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the indictment on the ground that the National Firearms Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the collective right of those comprising the Militia a body of citizens enrolled for military discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It ruled that: While [appellants] weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second amendment was designed to foster as necessary to the security of a free state. With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the American people the right to bear arms. In a more explicit language, the United States vs. Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument. Likewise, in People vs. Persce,[29] the Court of Appeals said: Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically

before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state. With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as we aptly observed in the early case of United States vs. Villareal:[30] The only contention of counsel which would appear to necessitate comment is the claim that the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of Rights. Counsel does not expressly rely upon the prohibition in the United States Constitution against the infringement of the right of the people of the United States to keep and bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it may be well, in passing, to point out that in no event could this constitutional guaranty have any bearing on the case at bar, not only because it has not been expressly extended to the Philippine Islands, but also because it has been uniformly held that both this and similar provisions in State constitutions apply only to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x. Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof provides: SECTION 9. Any person desiring to possess one or more firearms for personal protection, or for use in hunting or other lawful purposes only, and ammunition therefor, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such application, and before receiving the license, the applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and organized at the time of the passage of this Act, who at such time have a license to possess firearms, shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly executed by such person in accordance with existing law shall continue to be security for the safekeeping of such arms. The foregoing provision was restated in Section 887[31] of Act No. 2711 that integrated the firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal possession, manufacture, dealing in, acquisition of

firearms, ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be considered an inalienable or absolute right. III

Vested Property Right Section 1, Article III of the Constitution provides that no person shall be deprived of life, liberty or property without due process of law. Petitioner invokes this provision, asserting that the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested property right without due process of law and in violation of the equal protection of law. Petitioner cannot find solace to the above-quoted Constitutional provision. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or property interest exists. [32] The bulk of jurisprudence is that a license authorizing a person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry,[33] we ruled that a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right. In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr.[34] that: Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on Bell vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is issued, continued possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus involves state action that adjudicates important interest of the licensees. Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to bear arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord with our ruling that a PTCFOR is neither a property nor a property right. InErdelyi vs. OBrien,[36] the plaintiff who was denied a license to carry a firearm brought suit against the defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that the denial violated her constitutional rights to due process and equal protection of the laws. The United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a property interest in obtaining a license to carry a firearm, ratiocinating as follows:

Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise whenever a person has only an abstract need or desire for, or unilateral expectation of a benefit. x x x Rather, they arise from legitimate claims of entitlement defined by existing rules or understanding that stem from an independent source, such as state law. x x x Concealed weapons are closely regulated by the State of California. x x x Whether the statute creates a property interest in concealed weapons licenses depends largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [issuing authority] to deny licenses to applicants who claim to meet the minimum eligibility requirements. x x x Where state law gives the issuing authority broad discretion to grant or deny license application in a closely regulated field, initial applicants do not have a property right in such licenses protected by the Fourteenth Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law); Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs. King,[38] Nichols vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated that the test whether the statute creates a property right or interest depends largely on the extent of discretion granted to the issuing authority. In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence. Following the American doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under our Constitution. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed.[41] A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these words in the Declaration of Rights.[42] The US Supreme Court, inDoyle vs. Continental Ins. Co,[43] held: The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by the State is always revocable. The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The Government of the Philippine Islands vs. Amechazurra[44] we ruled: x x x no private person is bound to keep arms. Whether he does or not is entirely optional with himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so upon such terms as the Government sees fit to impose, for the right to keep and bear arms is not secured to him by law. The Government can impose upon him such terms as it pleases. If he is

not satisfied with the terms imposed, he should decline to accept them, but, if for the purpose of securing possession of the arms he does agree to such conditions, he must fulfill them. IV

Police Power At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the States police power. All property in the state is held subject to its general regulations, necessary to the common good and general welfare. In a number of cases, we laid down the test to determine the validity of a police measure, thus: (1) The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power; and (2) The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Deeper reflection will reveal that the test merely reiterates the essence of the constitutional guarantees of substantive due process, equal protection, and nonimpairment of property rights. It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and order in the society. Owing to the proliferation of crimes, particularly those committed by the New Peoples Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed it best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the assailed Guidelines is the interest of the public in general. The only question that can then arise is whether the means employed are appropriate and reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What they proscribe is merely the carrying of firearms outside of residence. However, those who wish to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not wait in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for criminals to roam around with their guns. On the other hand, it would be easier for the PNP to apprehend them. Notably, laws regulating the acquisition or possession of guns have frequently been upheld as reasonable exercise of the police power.[45] InState vs. Reams,[46] it was held that the legislature may regulate the right to bear arms in a manner conducive to the

public peace. With the promotion of public peace as its objective and the revocation of all PTCFOR as the means, we are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling in United States vs. Villareal,[47] is relevant, thus: We think there can be no question as to the reasonableness of a statutory regulation prohibiting the carrying of concealed weapons as a police measure well calculated to restrict the too frequent resort to such weapons in moments of anger and excitement. We do not doubt that the strict enforcement of such a regulation would tend to increase the security of life and limb, and to suppress crime and lawlessness, in any community wherein the practice of carrying concealed weapons prevails, and this without being unduly oppressive upon the individual owners of these weapons. It follows that its enactment by the legislature is a proper and legitimate exercise of the police power of the state. V

Ex post facto law In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or(d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. We see no reason to devote much discussion on the matter. Ex post facto law prohibits retrospectivity of penal laws.[49] The assailed Guidelines cannot be considered as an ex post facto law because it is prospective in its application. Contrary to petitioners argument, it would not result in the punishment of acts previously committed. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

[1] [2]

Section 5, Article II of the 1987 Philippine Constitution. Annex A of the Petition, Rollo at 60-62.

[3]

See Buklod ng Kawaning EIIB vs. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718; Fortich vs. Corona, G.R. No. 131457, April 24, 1998, 289 SCRA 624;Dario vs. Mison, G.R. No. 81954, August 8, 1989, 176 SCRA 84. People vs. Vera, 65 Phil. 56 (1937). Section 1, Article VI of the 1987 Constitution. Freund, Sutherland, Howe, Brown, Constitutional Law Cases and Other Problems, Fourth Edition, 1977, at 653. 51 Am. Jur. 2d 51. 51 Am Jur 2d 52. AN ACT TO REGULATE THE IMPORTATION, ACQUISITION, POSSESSION, USE, AND TRANSFER OF FIREARMS, AND TO PROHIBIT THE POSSESSION OF SAME EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF THIS ACT. SECTION 11. An application for a personal license to possess firearms and ammunition, as herein provided for, made by a resident of the city of Manila, shall be directed to the chief of police of said city, and it shall be the duty of the chief of the police to forward the application to the Governor-General with his recommendations. Any such application made by a resident of a province shall be directed to the governor of the province who shall make his recommendations thereon and forward the application to the senior inspector of the Constabulary of the province, who in turn shall make his recommendations thereon and forward the application, through official channels, to the Governor-General. The Governor-General may approve or disapprove any such application, and, in the event of the approval, the papers shall be transmitted to the Director of Constabulary with instructions to issue the license as hereinbefore provided. The Director of Constabulary, upon receiving and approving the bond, or receiving the certificate of deposit duly endorsed to the order of the Insular Treasurer, shall issue the license for the time fixed for such license as hereinafter provided, and the Director of Constabulary shall transmit the license direct to the applicant, and shall notify the chief of police of the city of Manila if the applicant resides in Manila, otherwise the senior inspector of Constabulary of the province in which the applicant resides. The Director of Constabulary shall file the certificate of deposit in his office. It shall be the duty of all officers through whom applications for licenses to possess firearms are transmitted to expedite the same. SECTION 30. The Governor-General is hereby authorized to issue executive orders prescribing the forms and regulations which he may deem necessary for the proper enforcement of the provisions of this Act. SEC. 882. Issuance of special hunting permits. The Department Head may authorize the Chief of Constabulary to issue special hunting permits to persons temporarily visiting the Philippine Islands, without requiring a bond or deposit as a guarantee of security for their arms and ammunition. Such special hunting

[4] [5] [6]

[7] [8]

[9]

[10]

[11]

[12]

permit shall be valid only during the temporary sojourn of the holder in the Islands, shall be nontransferable, and shall be revocable at the pleasure of the Department Head. SEC. 887. License required for individual keeping arms for personal use. Security to be given. Any person desiring to possess one or more firearms for personal protection or for use in hunting or other lawful purposes only, and ammunition thereof, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such application, and before receiving the license, the applicant shall, for the purpose of security, make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, and shall indorse the certificated of deposit therefor to the Insular Treasurer; or in lieu thereof he may give a bond in such form as the Governor-General may prescribed, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for each such firearms. SEC. 888. Mode of making application and acting upon the same. An application for a personal license to possess firearms and ammunition, as herein provided, made by a resident of the City of Manila, shall be directed to the Mayor of said city, whose duty it shall be to forward the application to the Governor-General, with his recommendation. Applications made by residents of a province shall be directed to the governor of the same, who shall make his recommendation thereon and forward them to the Governor-General, who may approve or disapprove any such application. SEC. 889. Duration of personal license. A personal firearms license shall continue in force until the death or legal disability of the licensee, unless, prior thereto, the license shall be surrendered by him or revoked by authority of the GovernorGeneral. SEC. 899. Revocation of firearms license by Governor-General. Any firearms license may be revoked at any time by order of the Governor-General. SEC. 905. Forms and regulations to be prescribed by Governor-General. The Governor-General shall prescribe such forms and promulgate such regulations as he shall deem necessary for the proper enforcement of this law.
[13]

(Delegating the CPC to Approve/Disapprove Applications)

15. In carrying out the provisions of Sections eight hundred and eighty-one, eight hundred and eighty-two, eighty hundred and eighty-eight, as amended by Section two of Act two thousand seven hundred and seventy-four, eight hundred and ninety-one and eight hundred and ninety-two of the Administrative Code, empowering the Governor-General to approve and disapprove applications for personal, special, and hunting licenses to possess firearms and ammunition, the Chief of Constabulary is authorized and directed to act for the GovernorGeneral.
[14]

Issued on December 5, 1924 by Governor-General Leonard Wood.

[15]

Pursuant to the provisions of Section 905, Administrative Code, as amended, empowering the President of the Philippines to prescribe regulations for the enforcement of the provisions of the law relating to the possession, use of firearms, etc., the following regulations are hereby promulgated.

SECTION 1. In carrying out the provision of Sections 881, 882 and 888 of the Revised Administrative Code, empowering the President of the Philippines to approve or disapprove applications for personal, special and hunting license to possess firearms and ammunition, the Chief of Constabulary or his representative is authorized and directed to act for the President. SECTION 2. In carrying out the provisions of Section 899 of the Revised Administrative Code, empowering the President of the Philippines to revoke any firearm license anytime, the Chief of Constabulary is authorized and directed to act for the President.
[16]

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. Section 8 of P.D. No. 1866. Baylosis vs. Chavez, Jr., G.R. No. 95136, October 3, 1991, 202 SCRA 405. AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTITLED CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR RELEVANT PURPOSES. Issued on June 29, 1983. Section 6 of R.A. No. 8294 provides:

[17] [18] [19]

[20]

SECTION 6. Rules and Regulations. The Department of Justice and the Department of the Interior and Local Government shall jointly issue, within ninety (90) days after the approval of this Act, the necessary rules and regulations pertaining to the administrative aspect of the provisions hereof, furnishing the Committee on Public Order and Security and the Committee on Justice and Human Rights of both Houses of Congress copies of such rules and regulations within thirty (30) days from the promulgation hereof.
[21]

AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES. Approved December 13, 1990.

[22]

Under Section 2 (11), Chapter 1, Book 7 of Executive Order No. 292, the Administrative Code of 1987, the term licensing includes agency process involving the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification or conditioning of a license. Section 26 of R.A. No. 6975. Chapter 7, Book IV of E.O. No. 292.

[23] [24]

[25]

Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens, from the nobility to the peasants, were obliged to privately purchase weapons and be available for military duty. [25] This body of armed citizens was known as the fyrd.

Following the Norman conquest, many of the Saxon rights were abridged, however, the right and duty of arms possession was retained. Under the Assize of Arms of 1181, the whole community of freemen is required to possess arms and to demonstrate to the Royal officials that each of them is appropriately armed. The Tudor monarchs continued the system of arm ownership and Queen Elizabeth added to it by creating what came to be known as train bands that is, the selected portions of the citizenry chosen for special training. These trained bands were distinguished from the militia which term was first used during the Spanish Armada crisis to designate the entire of the armed citizenry. The militia played a pivotal role in the English political system. When civil war broke out in 1642, the critical issue was whether the King or Parliament had the right to control the militia. After the war, England, which was then under the control of a military government, ordered its officers to search for and seize all arms owned by Catholics, opponents of the government, or any other person whom the commissioners had judged dangerous to the peace of the Commonwealth. The restoration of Charles II ended the military government. Charles II opened his reign with a variety of repressive legislation. In 1662, a Militia Act was enacted empowering officials to search and to seize all arms in the custody or possession of any person or persons whom the said lieutenants or any two or more of their deputies shall judge dangerous to the peace of the kingdom. Such seizures of arms continued under James I, who directed them particularly against the Irish population. In 1668, the government of James was overturned in a peaceful uprising which came to be known as The Glorious Revolution. Parliament promulgated a Declaration of Rights, later enacted as the Bill of Rights. Before coronation, James successor, William of Orange, was required to swear to respect these rights. The Bill of Rights, as drafted in the House of Commons, simply provided that the acts concerning the militia are grievous to the subject and it is necessary for the public safety that the subjects, which are protestants, should provide and keep arms for the common defense; And that the arms which have been seized, and taken from them, be restored. The House of Lords changed this to a more

concise statement: That the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law. In the colonies, the prevalence of hunting as means of livelihood and the need for defense led to armament statutes comparable to those of the early Saxon times. When the British government began to increase its military presence therein in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. In September 1774, an incorrect rumor that British troops killed colonists prompted 60,000 citizens to take arms. A few months later, when Patrick Henry delivered his famed Give me liberty or give me death speech, he spoke in support of a proposition that a well regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the States proposals for a Bill of Rights and sought to produce a briefer version incorporating all the vital proposals of such States. Madison proposed among other rights: The right of the people to keep and bear arms shall not be infringed; a well armed and regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service. In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposal finally passed the House in its present form: A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear arms, shall not be infringed. In this form it was submitted to the Senate, which passed it the following day.
[26] [27] [28] [29] [30] [31] [32]

307 U.S. 174 (1939). 131 Federal Reporter, 2d Series, 916. 92 U.S. 542, 23 L. Ed. 588. 204 N.Y. 397, 97 N.E. 877. 28 Phil. 390 (1914). Supra. Bzdzuich vs. U.S. Drug Enforcement Admin., 76 F 3d 738, 1996 FED App. 59P (6th Cir. 1996). G.R. No. L-24548, October 27, 1983, 125 SCRA 302. See also Pedro vs. Provincial Board of Rizal, 56 Phil. 123 (1931). G.R. No. 101083, July 30, 1993, 224 SCRA 792, penned by Chief Justice Hilario G. Davide, Jr. 402 U.S. 535 (1971). 680 F 2d 61 (1982).

[33]

[34]

[35] [36]

[37] [38] [39] [40] [41]

01-CV-3247, August 2002. 718 F. Supp. 1059 (1989). 223 Cal. App. 3d 1236, 273 Cal. Rptr. 84 (1990). 120 F. 3d 877 (1997). Stone vs. Fritts, 82 NE 792 (1907) citing Calder vs. Kurby, 5 Gray [Mass.] 597; Freleigh vs. State, 8 Mo. 606; People vs. New York Tax, etc., Comrs, 47 N.Y. 501; State vs. Burgoyne, 75 Tenn. 173, 40 Am. Rep. 60. Commonwealth vs. Kinsley, 133 Mass. 578. 94 U.S. 535, 540 24 L.Ed.148. 10 Phil. 637 (1908). Calvan vs. Superior Court of San Francisco, 70 Cal 2d 851, 76 Cal Rptr 642, 452 P2d 930; State vs. Robinson (Del Sup) 251 A2d 552; People vs. Brown, 253 Mich 537, 235 NW 245, 82 ALR 341. 121 N.C. 556, 557, 27 S.E. 1004, 1005 (1897). 28 Phil. 390 (1914). 2 Phil. 74 (1903). Lacson vs. The Executive Secretary G.R. No. 128096, January 20, 1999, 301 SCRA 298.

[42] [43] [44] [45]

[46] [47] [48] [49]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent. Vicente Sotto for petitioner. Office of the Solicitor-General Tuason for respondent. LAUREL, J.: The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows: "In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein. The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to

"functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.) The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is

recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code). In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows: No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same: SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses incident thereto. SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous to the Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury. SEC. 4. This act shall take effect on its approval. Approved, February 21, 1933. It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02. Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its activities simply

because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.) We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional inhibition. The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent. DECISION PUNO, J.: The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the states interest and the respondents religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses.[1] The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is considerable internal inconsistency in the opinions of the Court. [2] As stated by a professor of law, (i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty.[3]Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us.[4]

I. Facts The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials. In a wrote to Court of Soledad sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Las Pias City, requesting for an investigation of rumors that respondent Escritor, court interpreter in said court, is living with a man not her

husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.[5] Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the allegation and challenged Estrada to appear in the open and prove his allegation in the proper forum.[6] Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritors motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritors live-in arrangement did not command respect.[7] Respondent Escritor testified that when she entered the judiciary in 1999,[8] she was already a widow, her husband having died in 1998. [9]She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz: DECLARATION OF PLEDGING FAITHFULNESS I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union. Signed this 28th day of July 1991.[10] Escritors partner, Quilapio, executed a similar pledge on the same day.[11] Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another

woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents. [12] Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregations approval of her conjugal arrangement with Quilapio, viz: Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch. Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons to be held to and honored in full accord with the principles of Gods Word. xxx xxx Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.[13] Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course of Judge Macedas investigation, Escritor again testified that her congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregations belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritors) husband.[14] Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a Declaration of Pledging Faithfulness, viz: Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some particular rules and regulations in your congregation? xxx

A:

Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document? A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document? A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation.

Q: What standard rules and regulations do you have in relation with this document? A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation? A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q: And what does pledge mean to you? A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage? A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof? A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit? A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said that everyone divorcing his wife, except on account of fornication, makes

her a subject for adultery, and whoever marries a divorced woman commits adultery.[15] Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations. Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, Maintaining Marriage in Honor Before God and Men,[16] in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovahs congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couples marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritors and Quilapios declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregations branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.[17] Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the

magazine article entitled, Maintaining Marriage Before God and Men to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovahs Witnesses congregations which also distribute them to the public. [18] The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that she bound herself to seek means to . . . legalize their union. Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as those who cannot legalize their live-in relationship can simply join the Jehovahs Witnesses congregation and use their religion as a defense against legal liability.[19] On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine article entitled, Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz: The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesars authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of Gods Son, can be guided by basic Scriptural principles that hold true in all cases. Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether in itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of ones immediate family, or a homosexual relationship or other such situation condemned by Gods

Word. It is not the lack of any legal validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any kind of Declaration of Faithfulness, since it would have no merit in Gods eyes. If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do all one can to establish the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage. Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability. Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to Gods view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable among all. Such course will bring Gods blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)[20] Respondent also brought to the attention of the investigating judge that complainants Memorandum came from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her. In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that (b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more relevant question is whether or not to exact from respondent Escritor, a member of Jehovahs Witnesses, the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar.[22] The investigating judge acknowledged that religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice

Enrique M. Fernandos separate opinion in German vs. Barangan, 135 SCRA 514, 530531) and thereby recommended the dismissal of the complaint against Escritor.[23] After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice, DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules.[26]

II. Issue Whether or not respondent should be found guilty of the administrative charge of gross and immoral conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable.

III. Applicable Laws Respondent is charged with committing gross and immoral conduct under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz: Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: xxx xxx (5) Disgraceful and immoral conduct; xxx. xxx

Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz: Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

IV. Old World Antecedents of the American Religion Clauses To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in the recent past in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American experience. [27] This fresh look at the religion clauses is proper in deciding this case of first impression. In primitive times, all of life may be said to have been religious. Every significant event in the primitive mans life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him the wrathful vengeance of a superhuman mysterious power.[28]Distinction between the religious and non-religious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.[29] Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of the community.[30] There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man promulgated laws

concerning mans obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property;[31] and also catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabis own god to a position of equality with existing gods.[32] In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost universally the dominant partner.[33] With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion:theocracy. The authority and power of the state was ascribed to God.[34] The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when to pitch camp, when they should make war and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these. Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over the previous reigning gods.[35]Moses, on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further Gods purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God.[36] Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed out, viz: Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question of change from one religious belief to another did not arise. It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose.[37] (emphasis supplied)

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of government. With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God. [38] Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the states purposes. He reformed the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne. [39] The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him.[40] The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their crime was hatred of the human race, placing them in the same category as pirates and brigands and other enemies of mankind who were subject to summary punishments.[41] In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.[42] But his efforts proved futile. The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing is done by them contrary to discipline.[43] A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance. Furthermore, it was provided that the same free and open power to follow their own religion or worship is granted also to

others, in accordance with the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice.(emphasis supplied)[44] Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperors command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the states persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die unsaved. Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leos crowning of Charlemagne, became the churchs accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy. [45] The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church and state.[46] Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. [47] Papist and Protestant governments alike accepted the idea of cooperation between church and state and

regarded as essential to national unity the uniformity of at least the outward manifestations of religion.[48] Certainly, Luther, leader of the Reformation, stated that neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent. [49] But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that (h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise.[50] To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition.[51] There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread.[52] The minority or dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17th century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments.[53] The English Baptists proclaimed that the magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion.[54] Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.[55] After the Reformation, Erastianism pervaded all Europe except for Calvins theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool. [56] Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present

doctrinal status.[57] Elizabeth was to be recognized as the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal. She and her successors were vested, in their dominions, with all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction.[58] Later, however, Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics.[59] In 1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.[60] When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and 17thcentury Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz: The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them.[61] In 1784, James Madison captured in this statement the entire history of churchstate relations in Europe up to the time the United States Constitution was adopted, viz: Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions.[62]

In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religions invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history.[63]

V. Factors Contributing to the Adoption of the American Religion Clauses Settlers fleeing from religious persecution in Europe, primarily in Anglicandominated England, established many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely provided their cultural fare.[64] But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not, were required to support or attend. [65] At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different faiths.[66] This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and deism. [67] Each of these factors shall be briefly discussed. First, the practical factors. Englands policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable

only if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging them to think less of the Church and more of the State and of commerce.[68] The diversity brought about by the colonies open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive rightness of ones religion, which impels persecution for the sake of ones religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive.[69] But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the country had a church affiliation at the time the republic was founded.[70] This might be attributed to the drifting to the American colonies of the skepticism that characterized European Enlightenment.[71] Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal noninstitutional matter. The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong.[72] However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of worship.[73] Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment.[74] Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies. Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.[75] Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and

government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments.[76] In Williams pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,[77] he articulated the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it confounds the Civil and Religious and because States . . . are proved essentially Civil. The power of true discerning the true fear of God is not one of the powers that the people have transferred to Civil Authority.[78] Williams Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.[79] William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America, a monumental document in the history of civil liberty which provided among others, for liberty of conscience. [80] The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom.[81] The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.[82] Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in Americas Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with the English crown which violated the self-evident truth that all men are created equal.[83] The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz:

Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to secure every ones property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrates power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.[84] (emphasis supplied) The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto Caesar that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the realm of religion was not one of the powers conferred on government as part of the social contract.[85] Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,[86] in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background. [87] For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout history. [88] Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paines Age of Reason.[89] Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment. Virginia was the first state in the history of the world to proclaim the decree of absolute divorce between church and state.[90] Many factors contributed to this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its identification with the Crowns tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally, [91] who had accepted the social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the states first constitution:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.[92] (emphasis supplied) The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment.[93] But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the establishments loss of its exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which society for the purpose of Religious Worship he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately among the societies.[94] The bill evoked strong opposition. In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was introduced requiring all persons to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental Memorial and Remonstrance against Religious Assessments written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.[96] It stressed natural rights, the governments lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. He wrote, viz: Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men,

is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal sovereign.[97] (emphases supplied) Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The assessment bill was speedily defeated. Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January 1786. It provided, viz: Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; xxx xxx Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.[98] (emphases supplied) This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia.[99] But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation[100] grounded on rational, secular arguments and to the language of natural religion.[101] Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order.[102] To them, the Holy Ghost was sufficient to maintain and direct the Church xxx

without governmental assistance and state-supported religion was contrary ti the spirit of the Gospel.[103] Thus, separation was necessary.[104] Jeffersons religious freedom statute was a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.[105] However, omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution. [106] In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion.[107] Thus, in 1791, this restriction was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

VI.

Religion Clauses in the United States: Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its meaning.[108] Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role.[109] Government runs even family planning, sex education, adoption and foster care programs.[110] Stated otherwise and with some exaggeration, (w)hereas two centuries ago, in matters of social life which have a significant moral dimension,

government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government.[111]With government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values. [112] Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should require, permit or prohibit;[113] and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.[114] Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion. [115] The more difficult religion clause cases involve government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with burdensome effect on religious exercise even if the government action is not religiously motivated.[116] Ideally, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for protection.[117]Most of these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has a burdensome effect.[118] With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and

moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes.[119] It was in the 1890 case of Davis v. Beason[120] that the United States Supreme Court first had occasion to define religion, viz: The term religion has reference to ones views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.[121] The definition was clearly theistic which was reflective of the popular attitudes in 1890. In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. [123] By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism.[124] In 1961, the Court, in Torcaso v. Watkins,[125]expanded the term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger[126] which involved four men who claimed conscientious objector status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use. Forest Peter, another one of the four claimed that after considerable meditation and reflection on values derived from the Western religious and philosophical tradition, he determined that it would be a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state. The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Speaking for the Court, Justice Clark ruled, viz: Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief in relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied)

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training. Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some parallel belief that occupies a central place in the believers life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief.[127] Fourth, there must be some associational ties,[128] although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.[129] Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the same coin.[130] In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in different circumstances. [131] The purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is the protection and promotion of religious liberty.[132] The end, the goal, and the rationale of the religion clauses is this liberty.[133] Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced homogeneity.[134] The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a propensity. [135] In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is established. [136] It has even been suggested that the sense of the First Amendment is captured if it were to read as Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof because the fundamental and single purpose of the two religious clauses is to avoid any infringement on the free exercise of religions[137] Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all[138] because history has shown that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state.[139] In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious

interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.[140] In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited.[141] (emphasis supplied) Consequently, U.S. jurisprudence has produced two identifiably different, [142] even opposing, strains of jurisprudence on the religion clauses:separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality oraccommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States.[143] This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances would permit would be punished with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. It cited Jeffersons Bill Establishing Religious Freedom which, according to the Court, declares the true distinction between what properly belongs to the Church and what to the State.[144] The bill, making a distinction between belief and action, states in relevant part, viz: That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.[145] (emphasis supplied) The Court then held, viz:

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.[146] The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislatures preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislatures religious preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem.[147] The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself.[148] This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States.[149] However, more than a century since Reynolds was decided, the Court has expanded the scope of protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs. [150]

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs[151] and proscribes government from questioning a persons beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a persons religious beliefs. As held in United States v. Ballard,[153] (h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovahs Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.[155] Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the propagation of that belief, viz: Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied)[156] The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safety of the community. Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police could not prohibit members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs

Witnesses to use the city park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness.[159] The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action.[160] The Mormons religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: (c)rime is not the less odious because sanctioned by what any particular sect may designate as religion. [161] The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the governments non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic belief-actiondistinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and governments inadvertent interference with religion in pursuing some secular objective.[162] In the 1940 case of Minersville School District v. Gobitis,[163] the Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovahs Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a graven image. The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses practice of their religion, but justified the government regulation as an appropriate means of attaining national unity, which was the basis of national security. Thus, although the Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the states non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. Three years later, the Gobitis decision was overturned in West Virginia v. Barnette[164] which involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students who were members of the Jehovahs Witnesses from saluting the

flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, (n)or does the issue as we see it turn on ones possession of particular religious views or the sincerity with which they are held. While religion supplies appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. (emphasis supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.[166] The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.[167] Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence.[168] Atwo-part balancing test was established in Braunfeld v. Brown[169] where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the states interest. He employed a two-part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices.[170] The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day. Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.[171] This test was similar to thetwo-part balancing test in Braunfeld,[172] but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz: Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellants constitutional

challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellants religion may be justified by a compelling state interest in the regulation of a subject within the States constitutional power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied) The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to the religious right and a colorable state interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.[174] The Court found that there was no such compelling state interest to override Sherberts religious liberty. It added that even if the state could show that Sherberts exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherberts benefits would force her to choose between receiving benefits and following her religion. This choice placed the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This germinal case of Sherbertfirmly established the exemption doctrine, [175] viz: It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of aper se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.[176] Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. InThomas v. Review Board[177] and Hobbie v. Unemployment Appeals Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States

v. Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal governments refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that (b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.[180] It reasoned that unlike in Sherbert, an exemption would significantly impair governments achievement of its objective - the fiscal vitality of the social security system; mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the governments war-related activities, for example. The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free exercise of religion.[181] Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the Court upheld the religious practice of the Old Order Amish faith over the states compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz: It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. .. The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . . . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted

power to promote the health, safety, and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become easier because respondents were convicted for their actions in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . [183] The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith,[184] the sharply divided Rehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the well-established practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the states interest in prohibiting the use of illicit drugs. Oregons controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as job-related misconduct. They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for jobrelated misconduct. Justice Scalia, writing for the majority, ruled that if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended. In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregons drug prohibition law with the anti-polygamy statute inReynolds. The relevant portion of the majority opinion held, viz: We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. . . We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The governments ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objectors spiritual development. . . .To make an individuals obligation to obey such a law contingent upon the laws coincidence with his

religious beliefs except where the States interest is compelling - permitting him, by virtue of his beliefs, to become a law unto himself, . . . - contradicts both constitutional tradition and common sense. Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations fundamental commitment to religious liberty. This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he compelling state interest test effectuates the First Amendments command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest of the highest order. Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with mischaracterizing precedents and overturning. . . settled law concerning the Religion Clauses of our Constitution. He pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that Oregons interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents right to the free exercise of their religion. The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.[185] First, the First amendment was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an interference with the minoritys religious freedom. If the regulation had instead restricted the majoritys religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys religious interests implements the majoritys religious viewpoint at the expense of the minoritys. Second, government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-GobitisSmith doctrine simply defies common sense. The state should not be allowed to

interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.[186] Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout, [187] contrary to the original theory of the First Amendment.[188] Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority religions andSmith virtually wiped out their judicial recourse for exemption. [189] Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.[190] So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a persons free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.[191] RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional interpretation. After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah[193] which was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption. The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious rituals. It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause

The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.[195] Prior cases had made passing reference to the Establishment Clause[196] and raised establishment questions but were decided on other grounds.[197] It was in the Everson case that the U.S. Supreme Court adopted Jeffersons metaphor of a wall of separation between church and state as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase separation of church and state does not appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion clauses, viz: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between Church and State.[199] (emphasis supplied) Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. [200] The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in public schools.[201] In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the states legitimate interest in getting children regardless of their religion, safely and expeditiously to and from accredited schools. The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz: The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State.[202]

The Court then ended the opinion, viz: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.[203] By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a threepronged test in Lemon v. Kurtzman[204] in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an excessive entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania statutory program and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s.[206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black stated that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government. In fact, history shows that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp[208]and Murray v. Curlett[209] where the Court struck down the practice of Bible reading and the recitation of the Lords prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz: The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental

and religious functions or a concert or dependency of one upon the other to the end that official support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.[210] The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state legislatures condemned these decisions.[211] On several occasions, constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where the Court struck down an Alabama law that required public school students to observe a moment of silence for the purpose of meditation or voluntary prayer at the start of each school day. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,[213] decided just a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of tax-established and tax-supported public school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one religion over another and not an impartial governmental assistance of all religions. In Zorach v. Clauson,[214] however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that (t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State. The Court distinguished Zorach from McCollum, viz: In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . We follow the McCollum case. But we

cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.[215] In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz: It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.[217] In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, (w)e are a religious people whose institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219](emphasis supplied) Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress.[220] That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 54 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a neutral harbinger of the holiday season for many, rather than a symbol of Christianity. The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax Commissions grant of property tax exemptions to churches as allowed by state law was challenged by Walz

on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz: It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious worship within a broad class of property owned by non-profit, quasi-public corporations . . . The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.[223] The Court added that the exemption was not establishing religion but sparing the exercise of religion from the burden of property taxation levied on private profit institutions[224] and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the Courts traditional deference to legislative bodies with respect to the taxing power,viz: (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with preRevolutionary colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.[225] (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz: Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated standardized tests (Committee for Pub.

Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safetyrelated maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226] But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame.[227] But the accommodationists have also attracted a number of influential scholars and jurists.[228] The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame protects the principle of church-state separation with a rigid reading of the principle while benevolent neutrality protects religious realities, tradition and established practice with a flexible reading of the principle.[229] The latter also appeals to history in support of its position, viz: The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion. . . the Supreme Court has overlooked many important pieces of history. Madison, for example, was on the congressional committee that appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, there is no support in the Congressional records that either the First Congress, which framed the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of complete independence between religion and government. In fact, the evidence in the public documents goes the other way.[230] (emphasis supplied) To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after Congress adopted the First Amendments prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a mimicking of European customs, where they made a mere mockery of thanksgivings, the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and the motion was passed without further recorded

discussion.[231] Thus, accommodationists also go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time before or since,[232] accommodationaists claim that American citizens at the time of the Constitutions origins were a remarkably religious people in particularly Christian terms.[233] The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the wall of separation. The strict separtionist view holds that Jefferson meant the wall of separation to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.[234]He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmony. [235] Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the states hostility towards religion allows no interaction between the two.[236] In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion. [237] This approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on believers.[238] Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict wall of separation is necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.[240] A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Courts tendency to press relentlessly towards a more secular society.[241] It finds basis in the Everson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the First Amendment but at the same time held that the First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them. (emphasis supplied)[242] While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief.[243] Professor Kurland wrote,viz:

The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden.[244] The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects.[245] Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.[246] The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality standard is applied in interpreting the Establishment Clause, it could de factovoid religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is prohibited by the Constitution.[247] Professor Laurence Tribe commented in his authoritative treatise, viz: To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.[248] The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation captures the spirit of the American ideal of church-state separation, in real life church and state are not and cannot be totally separate.[249] This is all the more true in contemporary times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at many points.[250] Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room foraccommodation is buttressed by a different view of the wall of separation associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the church from the state, [251] i.e., the garden of

the church must be walled in for its own protection from the wilderness of the world[252] with its potential for corrupting those values so necessary to religious commitment.[253] Howe called this the theological or evangelical rationale for churchstate separation while the wall espoused by enlightened statesmen such as Jefferson and Madison, was a political rationale seeking to protect politics from intrusions by the church.[254] But it has been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between religious and secular (political); the religious style was biblical and evangelical in character while the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.[255] The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams view would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious commitment. [256] His conception of separation is not total such that it provides basis for certain interactions between church and state dictated by apparent necessity or practicality. [257] This theological view of separation is found in Williams writings, viz: . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . .[258] Chief Justice Burger spoke of benevolent neutrality in Walz, viz: The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.[259] (emphasis supplied) The Zorach case expressed the doctrine of accommodation,[260] viz: The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist

or agnostic could even object to the supplication with which the Court opens each session: God save the United States and this Honorable Court. xxx xxx We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence.[261] (emphases supplied) Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no human society without one or more ways of performing the essential function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology.[262] As one sociologist wrote: It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.[263] Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which modern social scientists would classify as a religionReligion is as much a human universal as language.[264] Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of In God We Trust on American currency, the recognition of America as one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-honored practice of opening oral argument with the invocation God save the United States and this honorable Court, and the practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination to lead representatives in prayer.[265] These practices clearly show the preference for one theological viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government xxx

activities with strong moral dimension.[266] The persistence of these de facto establishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams wall, has demanded respect for these de facto establishments.[267] But the separationists have a different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these practices as de minimis instances of government endorsement or as historic governmental practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion.[268] With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the governments favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan explained, the government [may] take religion into accountto exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish.[269] (emphasis supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, butrespect for the conflict between the temporal and spiritual authority in which the minority finds itself.[270] Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: Is the freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of religious blindness keeping government aloof from religious practices and issues? An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.[271] There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at religion. The government may not establish religion and neither may government prohibit it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - government action that promotes the (political) majoritys favored brand of religion and government action

that impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the religion blindness of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allowsaccommodations prevents needless injury to the religious consciences of those who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic

beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.[272] Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause. [273] Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public ceremonial events.[274] Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible, and those where it isprohibited. In the first situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are intentional government advancement, these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions or practices in the absence of a compelling state interest. [275] By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority[276] for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant.[277] The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the state unemployment compensation plan must accommodate the religious convictions of Sherbert.[278] In these cases of burdensome effect, the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which

burdens the religious exercise pursues a particularly important or compelling government goal through the least restrictive means. If the states objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.[279] This approach of the Court on burdensome effect was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.[280] In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.[281] The Court held that New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of property taxes. Other examples are theZorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions are valid.[282] An example where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises.[283] In effect, the last situation would arrive at a strict neutrality conclusion. In the first situation where accommodation is required, the approach follows this basic framework: If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or compelling) secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religious denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs, however sincere and conscientious, do not suffice.[284] In other words, a three-step process (also referred to as the two-step balancing process supra when the second and third steps are combined) as in Sherbert is followed in weighing the states interest and religious freedom when these collide. Three questions are answered in this process. First, (h)as the statute or government action created a burden on the free exercise of religion? The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of

sincerity, the U.S. Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,[285] the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case.[286]Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish peoples convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a cardinal principle.[287] Professor Lupu puts to task the person claiming exemption, viz: On the claimants side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individuals religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.[288] Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of religious liberty? In this step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.[289] The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under the particular set of facts. The greater the states interests, the more central the religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption.[290] Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?[291] The analysis requires the state to show that the means in which it is achieving its legitimate state objective is

the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined judgment.[292] In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society.[293]

VII. Religion Clauses in the Philippines

A. History Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers.[294] Catholics alone enjoyed the right of engaging in public ceremonies of worship.[295] Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state religion.[296] The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of separation of church and state was transported to Philippine soil. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion.[297] Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that the State recognizes the liberty and equality of all religion (de todos los cultos) in the same manner as the separation of the Church and State. But the Malolos Constitution and government was short-lived as the Americans took over the reigns of government.[298] With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over

the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz: That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling.[299] This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that (t)he separation between State and Church shall be real, entire and absolute.[300] Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in theInstructions, the Philippine Bill of 1902 provided that: No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed. In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect.[302] The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz: That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such. This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed that (a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship.[303] The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of December 10, 1898, which first

introduced religious toleration in our country. President McKinleys Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law. [304] In accordance with the TydingsMcDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz: Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This provision, borrowed from the Jones Law, was readily approved by the Convention.[305] In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because the principles must remain couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them.[306] The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz: Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church and state shall be inviolable. Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.[307] Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies. Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation separation and benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of religion. Religion is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a bond between man and the gods.[308] This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible.[309] While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of religion to determine whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined religion as a profession of faith to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,[311] a case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: (i)t has reference to ones views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will. The Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.[312] In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of Education[313]is instructive on the matter, viz: The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel.[314] The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the citys ordinances. Plaintiff argued that this amounted to religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines. After defining religion, the Court, citing Tanada and Fernando, made this statement, viz: The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the religious freedom area, and in Philippine jurisprudence, for that matter.[315] The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to apply the test altogether. Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said merchandise for profit. To add, the Court, citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Thus, inAmerican Bible Society, the clear and present danger rule was laid down but it was not clearly applied. In the much later case of Tolentino v. Secretary of Finance,[317] also involving the sale of religious books, the Court distinguished theAmerican Bible Society case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT

system. Citing Jimmy Swaggart Ministries v. Board of Equalization,[318] the Court also declared prefatorily that the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. In the Courts resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly. Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,[319] this time involving conductexpressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovahs Witnesses. They challenged a Department Order issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order, petitioners children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz: . . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)[320] The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following justification: After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.[321] It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioners children, stressing that: Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.[322]

In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz: The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.[323] It stated in categorical terms, viz: The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.[324] Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of ones religion, ones right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated inBalbuna, et al. v. Secretary of Education, et al.[325] Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this unanimously decided en banccase, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The union notified the company of Victorianos resignation, which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the company would be constrained to dismiss him from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz: Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.[327] (emphasis supplied)

As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz: The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the states secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied) Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It also cited Board of Education v. Allen,[330] which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz: (Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment.[331] The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect. [332] In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted

unless some compelling state interest intervenes. The Court then abruptly added that (i)n the instant case, We see no compelling state interest to withhold exemption.[333] A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court mentioned the test of immediate and grave danger to the security and welfare of the community and infringement of religious freedom only to the smallest extent necessary to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the states secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the compelling state interest test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes. It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the compelling state interest test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no compelling state interest to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the compelling state interest test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding Sherberts claim of religious freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state interest was not sufficiently compelling to prevail over Sherberts free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victorianos exercise of religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,[334] Anucension v. National Labor Union, et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]

Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang security area to pray for an end to violence when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz: . . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.[337] The Court reiterated the Gerona ruling, viz: In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same to action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: . . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied) The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth functioning of the executive branch of the government, which petitioners mass action would certainly disrupt[338] and denied the petition. Thus, without considering the tests mentioned inVictoriano, German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law. Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent stated in relevant part, viz: A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues. 1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying

phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570) 2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560561).[339] (emphasis supplied) The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. NeverthelessBagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions right to assemble and petition the government for redress of grievances.[340] In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the Court in Ebralinag v. The Division Superintendent of Schools.[341] A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the grave and imminent danger test laid down in Justice Teehankees dissent in German, viz: The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.[342] (emphasis supplied) The Court added, viz: We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag

ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.[343] Barnette also found its way to the opinion, viz: Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).[344] Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state interest test in according exemption to the Jehovahs Witnesses, viz: In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group: x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790) We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others.[345] The Court annulled the orders expelling petitioners from school. Thus, the grave and imminent danger test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free exercise of religious profession and worship; the Court then stated in a footnote that the flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.[346]

The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant exemption of the school children of the Jehovahs Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions.[347] The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners religious freedom. Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.[348] Although there was a dissent with respect to the applicability of the clear and present danger test in this case, the majority opinion in unequivocal terms applied the clear and present danger test to religious speech. This case involved the television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner Iglesia ni Cristos submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as X or not for public viewing on the ground that they offend and constitute an attack against other religions which is expressly prohibited by law. Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the Boards power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on ones belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. [349] Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare.[350] In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-rating was a suppression of petitioners freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack. The Court then called to mind the clear and present danger test first laid down in the American Bible Society case and the test of immediate and grave danger with infringement only to the smallest extent necessary to avoid danger in Victoriano and

pointed out that the reviewing board failed to apply the clear and present danger test. Applying the test, the Court noted, viz: The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. Replying to the challenge on the applicability of the clear and present danger test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial[351] and ruled, viz: . . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.[352] In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated the clear and present danger test in American Bible Societyand the grave and imminent danger in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.[353]

2. Establishment Clause In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.[354] As a social value, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their

own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics.[355] Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.[356] The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case ofAglipay v. Ruiz,[357] the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No. 4052 [358] which appropriated a sum for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency advantageous to the Government. The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz: The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration. Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy, they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . .[359]

xxx xxx

xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied) In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saints image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiestaand having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in rural communities that relieves the monotony and drudgery of the lives of the masses. Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from the barrio residents. The Court pointed out that the image of the patron saint was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. Citing theAglipay ruling, the Court declared, viz: Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz:

The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. CitingTorcaso v. [363] Watkins, the ponencia held, viz: Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ***. Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: this Maryland religious test for public office unconstitutionally invades the appellants freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate.[364] On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar stated: To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect. Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor. Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American Jurisprudence,[366] viz: Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. . .[367] The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their internal laws. To

finally dispose of the property issue, the Court, citing Watson v. Jones,[368] declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz: The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.[369]

VIII. Free Exercise Clause vis--vis Establishment Clause In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases.[370] One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation of church and state justified the prohibition. Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz: In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.[371](emphasis supplied)

Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by sparing the exercise of religion from the burden of property taxation levied on private profit institutions. Justice Burger wrote, viz: (t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.[372] Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz: We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements.[373] (emphasis supplied) Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: (t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment. How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based support of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizens free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised.[374] American professor of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle should be dominant in any conflict with the anti-establishment principle. This dominance would be the result of commitment to religious tolerance instead of thwarting at all costs even the faintest appearance of establishment.[375] In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that reaches a variety of areas of

human conduct and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court. [376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and Jurisprudence The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauses history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It is a cardinal rule in constitutional construction that the

constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect.[377] From this construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.[378] We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz: (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth period.[379] The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from taxation.[380] The amendment was readily approved with 83 affirmative votes against 15 negative votes.[381] The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by non-profit, quasipublic corporations because the state upheld the secular policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such,except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium.(emphasis supplied) The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such[382] In the deliberations of this draft provision, an amendment was proposed to strike down everything after church denomination.[383] The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law.[384] To settle the question on the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes. [385] As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas payment of prison chaplains salaries as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall. To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz:

. . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . The law then applicable was Section 928 of the Administrative Code, viz: It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . . During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools.[386] The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state. [387] As in the provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion. Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution. A preamble is a key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof. [388] There was no debate on the inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine Providence, (t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations.[389] The 1935 Constitutions religion clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.[390]

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted as may be provided by law and not as now authorized by law as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in public elementary and high schools shall be done (a)t the option expressed in writing by the parents or guardians, and without cost to them and the government. With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: (t)he separation of church and state shall be inviolable. The 1973 Constitution retained the portion of the preamble imploring the aid of Divine Providence. In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, the question arose as to whether the absolute separation of Church and State as enunciated in the Everson caseand reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The sub-committees answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the elevating influence of religion in human society and the Filipinos imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.[391] Among the position papers submitted to the Committee on Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious values.[392] Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.[393] Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public money for purposes which might have religious

connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his proposal.[394] The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted within the regular class hours and without additional cost to the government. There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial services, [395] and when during the day instruction would be conducted.[396] In deliberating on the phrase within the regular class hours, Commissioner Aquino expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: . . . the whole purpose of the provision was to provide for an exception to the rule on nonestablishment of religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something here which is contrary to American practices.[397] (emphasis supplied) (W)ithin regular class hours was approved. The provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated, viz: . . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is inviolable, is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the non-establishment clause in the Bill of Rights.[398] The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal God.[399] God of History, Lord of History and God were also proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987

Constitution is not hostile nor indifferent to religion;[400] its wall of separation is not a wall of hostility or indifference.[401] The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state.[402] The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves this first type ofaccommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise. Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed.[403] We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty not only for a minority, however small- not only for a majority, however large-

but for each of us to the greatest extent possible within flexible constitutional limits. Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called benevolent neutrality or accommodation. In Aglipay, the Court not only stressed the elevating influence of religion in human society but acknowledged the Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government participation in long-standing traditions which have acquired a social character - the barrio fiesta is a socio-religious affair - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. InEbralinag, members of the Jehovahs Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause. While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses are a unique American experiment which understandably came about as a result of Americas English background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines own experiment, reflective of the Filipinos own national soul, history and tradition. After all, the life of the law. . . has been experience. But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free exercise could

be used to countenance actions that would undo the constitutional order that guarantees free exercise.[405] The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and present danger test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the immediate and grave danger test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the compelling state interest test. After Victoriano, German went back to the Gerona rule. Ebralinag then employed the grave and immediate danger test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the clear and present danger test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed the clear and present danger or grave and immediate danger test involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority cited by Germanhas been overruled by Ebralinag which employed the grave and immediate danger test. Victoriano was the only case that employed the compelling state interest test, but as explained previously, the use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the clear and present danger and grave and immediate danger tests were appropriate as speech has easily discernible or immediate effects. The Gerona andGerman doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The compelling state interest test is proper where conduct is involved for the whole gamut of human conduct has different effects on the states interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - the most inalienable and sacred of all human rights, in the words of Jefferson.[406] This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, [407] thus the Filipinos implore the aid of Almighty God in order to build a just and humane society and establish a government. As held in Sherbert, only the gravest abuses,

endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. [408] In determining which shall prevail between the states interest and religious liberty, reasonableness shall be the guide.[409] The compelling state interest serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the compelling state interest test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of disgraceful and immoral conduct for which he/she may be held administratively liable.[410] In these cases, there was not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo[411] and the 1999 case of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for disgraceful and immoral conduct and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes disgraceful and immoral conduct punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the above-cited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal arrangement with

Quilapio based on the churchs religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order. At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally.[413] The answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price.[414] This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one.[415]Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a societys members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions. [416] From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should nevertheless be a fundamental agreement about good and evil that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Harts argument propounded in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a single society as having common moral foundation (is) overly simplistic because societies have always been diverse fails to recognize the necessity of Devlins proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society.

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. [417] Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups.[418] Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom not only for a minority, however small- not only for a majority, however large- but for each of us -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.[419] In the realm of religious exercise, benevolent neutrality that gives room foraccommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious accommodations. The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness and deposit of our moral life. [420] In a liberal democracy, the law reflects social morality over a period of time.[421] Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.[422] Law has also been defined as something men create in their best moments to protect themselves in their worst moments.[423]Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, the life of the law...has been experience, in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person.[424] Law also serves as a helpful starting point for thinking about a proper or ideal public morality for a society[425] in pursuit of moral progress. In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law and public morality. We held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded upon the moral disapprobation x x x of actions which are immoral,i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality is generally founded and built

upon a certain concurrence in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment.[427] Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the person injured but against society as a whole. [428] Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual congress between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country. His opinion asks whether these laws on private morality are justified or they constitute impingement on ones freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondents conduct, which constitutes concubinage,[430] is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action,[432] but does not alter the legislatures characterization of the act as a moral disapprobation punishable by law. The separate opinion states that, (t)he ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality. The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, between secular and private morality, but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed. Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz: Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (emphasis supplied) We then cited in Velayo the Code Commissions comment on Article 21: Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief. A provision similar to the one under consideration is embodied in article 826 of the German Civil Code.[433] (emphases supplied) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality proceeds from a persons views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will, in accordance with this Courts definition of religion in American Bible Society citing Davis. Religion also dictates how we ought to live for the nature of religion is not just to know, but often, to act in accordance with mans views of his relations to His Creator.[434] But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative establishment of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the war of all sects against all; the establishment of a secular public moral order is the social contract produced by religious truce.[435] Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional Responsibility for lawyers[436], or public morals in the Revised Penal Code,[437] or morals in the New Civil Code,[438] or moral character in the Constitution,[439] the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind.[440] The morality referred to

in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms.[441]Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.[442] In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.[443] Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitutions religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutralitycould allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should consider that, (a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for

which they are enacted would, a departure be justified. In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in a benevolent neutrality framework, anaccommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely, should the Court declare respondents conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondents conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, inFonacier, this Court declared that matters dealing with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical matters which are outside the province of the civil courts.[444] But while the state, including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order

are designed in such a way that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The states inroad on religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription. Having distinguished between public and secular morality and religious morality, the more difficult task is determining which immoral acts under this public and secular morality fall under the phrase disgraceful and immoral conduct for which a government employee may be held administratively liable. The line is not easy to draw for it is like a line that divides land and sea, a coastline of irregularities and indentations. [445]But the case at bar does not require us to comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not attach. We need not concern ourselves in this case therefore whether laziness, gluttony, vanity, selfishness, avarice and cowardice are immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the law is the witness and deposit of our moral life, then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us. In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of morality and stated that the ascertainment of what is moral or immoral calls for the discovery of contemporary community standards but did not articulate how these standards are to be ascertained. Instead, it held that, (f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered. It identified the Civil Service Law and the laws on adultery and concubinage as laws which respondents conduct has offended and cited a string of precedents where a government employee was found guilty of committing a disgraceful and immoral conduct for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondents conduct constitutes disgraceful and immoral conduct. However, the cases cited by the dissent do not involve the defense of

religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in laying down the standard of morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined by respondents concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns. The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.[447] The resolution of that case hinged on the interpretation of the phrase immoral purpose. The U.S. Supreme Court held that the petitioner Mormons act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a project, was covered by the phrase immoral purpose. In so ruling, the Court relied on Reynolds which held that the Mormons practice of polygamy, in spite of their defense of religious freedom, was odious among the northern and western nations of Europe,[448] a return to barbarism,[449] contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world,[450] and thus punishable by law. The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike inCleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so odious and barbaric as to be immoral and punishable by law. While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents plea of religious freedom and disposed of this defense by stating that (a) clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in the judiciary. However, the foregoing discussion has shown that the clear and present danger test that is usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of disgraceful and immoral conduct. The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses.

In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the constitutional intent of employingbenevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for disgraceful and immoral conduct but conduct prejudicial to the best interest of the service as she is a necessary co-accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself against the charge of conduct prejudicial to the best interest of the service. In addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondents plea of religious freedom cannot prevail without so much as employing a test that would balance respondents religious freedom and the states interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondents plea of religious freedom without even subjecting it to the compelling state interest test that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution. Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik[451] cited in Mr. Justice Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because it (was) not immoral by Muslim standards for Judge Malik to marry a second time while his first marriage (existed). Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a person married x x x under Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry a second time while his first marriage exists.[452] It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating respondents conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar The case at bar being one of first impression, we now subject the respondents claim of religious freedom to the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility that respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether respondents right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherberts religious exercise was burdened as the denial of unemployment benefits forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. The burden on respondent in the case at bar is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands honorable before God and men. The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the union of their members under respondents circumstances honorable before God and men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters[453] of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCAs letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had different positions regarding respondents request for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and practice. Respondents request for exemption from the flag ceremony shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the

Solicitor General, want to further question the respondents sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at bar from its incipience until this point. In any event, even if the Court deems sufficient respondents evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar cannot still be decided using the compelling state interest test. The case at bar is one of first impression,thus the parties were not aware of the burdens of proof they should discharge in the Courts use of the compelling state interest test. We note that the OCA found respondents defense of religious freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et al., viz: It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice. It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCAs memorandum to the Court that demonstrates how this interest is so compelling that it should override respondents plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondents religious exercise. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the respondents stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her right to religious freedom.[454] We cannot therefore simply take a passing look at respondents claim of religious freedom, but must instead apply the compelling state interest test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the states compelling interest which can override respondents religious belief and practice. To repeat, this is a case of first impression where we are applying the compelling state interest test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God. IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondents claimed

religious belief and practice; (b) to present evidence on the states compelling interest to override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrators receipt of this Decision. SO ORDERED. Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur. Bellosillo and Vitug, JJ., please see separate opinion. Ynares-Santiago, and Carpio, JJ., see dissenting opinion. Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio. Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

[1]

Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber, P., Equal Separation (1990), p. 17. Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668. Smith, S., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of Pennsylvania Law Review, vol. 140(1), November 1991, pp. 149150. Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963). Rollo, pp. 5-6. Id. at 8. Id. at 19-26; TSN, October 12, 2000, pp. 3-10. Id. at 101. Id. at 100; Exhibit 3, Certificate of Death. Id. at 10; Exhibit 1. Id. at 11; Exhibit 2. Id. at 27-33. Id. at 37. Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10. Id. at 156-160, TSN, May 29, 2002, pp. 5-9. Citing biblical passages, this article addresses the question, Does the validity of a marriage depend entirely upon its recognition by civil authorities and does their validation determine how Jehovah God, the author of marriage, views the

[2] [3]

[4]

[5] [6] [7] [8] [9]

[10] [11] [12] [13] [14] [15] [16]

union? It traces the origins of marriage to the time of the Hebrews when marriage was a family or tribal affair. With the forming of Israel as a nation, God gave a law containing provisions on marriage, but there was no requirement for a license to be obtained from the priesthood nor that a priest or a representative from government be present in the marriage to validate it. Instead, as long as Gods law was adhered to, the marriage was valid and honorable within the community where the couple lived. In later Bible times, marriages came to be registered, but only after the marriage had been officiated, thereby making the government only a record-keeper of the fact of marriage and not a judge of its morality. In the early centuries of the Christian congregation, marriage was likewise chiefly a family affair and there was no requirement of license from the religious or civil authority to make it valid and honorable. It was conformity to Gods law that was necessary for the marriage to be viewed as honorable within the congregation. Later, however, the civil authorities came to have more prominence in determining the validity of a marriage while the role of the congregation waned. Christians cannot turn their back on this reality in desiring to make their marriage honorable among all, i.e., in the sight of God and men. However, the view of civil authorities regarding the validity of marriage is relative and sometimes even contradictory to the standards set by the Bible. For example, in some lands, polygamy is approved while the Bible says that a man should only have one wife. Likewise, some countries allow divorce for the slightest reasons while others do not allow divorce. The Bible, on the other hand, states that there is only one ground for divorce, namely, fornication, and those divorcing for this reason become free to marry. To obtain a balanced view of civil authority (or Caesars authority in Biblical terms) regarding marriage, it is well to understand the interest of civil governments in marriage. The government is concerned with the practical aspects of marriage such as property rights and weakening genetic effects on children born to blood relatives, and not with the religious or moral aspects of marriage. Caesars authority is to provide legal recognition and accompanying protection of marital rights in court systems, thus a Christian desiring this recognition and rights must adhere to Caesars requirements. However, God is not bound by Caesars decisions and the Christian should rightly give conscientious consideration to Caesars marriage and divorce provisions but will always give greatest consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom. 13:105). . . Thus the Christian appreciates that, even though Caesars rulings of themselves are not what finally determine the validity of his marriage in Gods eyes, this does not thereby exempt him from the Scriptural injunction: Let marriage be honorable among all. (Heb. 13:4) He is obligated to do conscientiously whatever is within the power to see that his marriage is accorded such honor by all. Those who wish to be baptized members of the Christian congregation but do not have legal recognition of their marital union should do all that is possible to obtain such recognition, thereby removing any doubt as to the honorableness of their union in the eyes of people.

In some cases, however, it is not possible to secure this recognition. For instance, in countries where divorce is not allowed even on the Scriptural ground of fornication, either because of the dominance of one religion or other reasons, a man might have left his unfaithful wife and lives with another woman with whom he has a family. He may later learn the truth of Gods Word and desire to be baptized as a disciple of Gods Son, but he cannot obtain divorce and remarry as the national laws do not allow these. He might go to a land which permits divorce and remarry under the laws of that land and add honor to his union, but upon returning to his homeland, the law therein might not recognize the union. If this option is not available to that man, he should obtain a legal separation from his estranged mate or resort to other legal remedies, then make a written statement to the local congregation pledging faithfulness to his present mate and declaring his agreement to obtain a legal marriage certificate if the estranged legal wife should die or if other circumstances should make possible the obtaining of such registration. If his present mate likewise seeks baptism, she would also make such a signed statement. (p. 182) In some cases, a person might have initiated the process of divorce where the law allows it, but it may take a long period to finally obtain it. If upon learning Bible truth, the person wants to be baptized, his baptism should not be delayed by the pending divorce proceedings that would make his present union honorable for Bible examples indicate that unnecessary delay in taking the step of baptism is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16). Such person should then provide the congregation with a statement pledging faithfulness, thereby establishing his determination to maintain his current union in honor while he exerts effort to obtain legal recognition of the union. Similarly, in the case of an already baptized Christian whose spouse proves unfaithful and whose national laws do not recognize the God-given right to divorce an adulterous mate and remarry, he should submit clear evidence to the elders of the congregation of the mates infidelity. If in the future he decides to take another mate, he can do this in an honorable way by signing declarations pledging faithfulness where they also promise to seek legal recognition of their union where it is feasible. This declaration will be viewed by the congregation as a putting of oneself on record before God and man that the signer will be just as faithful to his or her existing marital relationship as he or she would be if the union were one validated by civil authorities. Such declaration is viewed as no less binding than one made before a marriage officer representing a Caesar government of the world. . . It could contain a statement such as the following: I, __________, do here declare that I have accepted __________ as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before Jehovah God and before all persons, to be held to and honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future

time a change in circumstances makes this possible I promise to legalize this union. The declaration is signed by the declarant and by two others as witnesses and the date of declaration is indicated therein. A copy of the declaration is kept by the persons involved, by the congregation to which they belong, and by the branch office of the Watch Tower Society in that area. It is also beneficial to announce to the congregation that a declaration was made for their awareness that conscientious steps are being undertaken to uphold the honorableness of the marriage relationship. It must be realized, however, that if the declarant is unable to obtain recognition from the civil authorities, even if he makes that declaration, whatever consequences result to him as far as the world outside is concerned are his sole responsibility and must be faced by him. (p. 184) For instance, should there be inheritance or property issues arising from an earlier marriage, he cannot seek legal protection with regard to his new, unrecognized union.

EN BANC

[G.R. No. 151445. April 11, 2002]

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents. SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, vs. GLORIA MACAPAGAL-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents. DECISION DE LEON, JR., J.: This case involves a petition for certiorari and prohibition as well as a petition-inintervention, praying that respondents be restrained from proceeding with the so-called

Balikatan 02-1 and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. The facts are as follows: Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in Balikatan 02-1. These so-called Balikatan exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,[1] a bilateral defense agreement entered into by the Philippines and the United States in 1951. Prior to the year 2002, the last Balikatan was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda (the Base), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of lives. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise.[2] They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-intervention on February 11, 2002. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. On February 7, 2002 the Senate conducted a hearing on the Balikatan exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign Affairs, presented the Draft Terms of Reference (TOR).[3] Five days later, he approved the TOR, which we quote hereunder: I. POLICY LEVEL

1. The Exercise shall be Consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. 3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise. 4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the APP during the FTX. 5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise. 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the APP Forces. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. 1. EXERCISE LEVEL TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.

2.

ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VFA. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials. Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.[4] Petitioners Lim and Ersando present the following arguments: I THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM. BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK IF FIRED UPON. Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO. In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersandos standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as taxpayers inasmuch as it has not been shown that Balikatan 02-1 involves the exercise of Congress taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.[5]Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree. It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the Terms of Reference are clear as to the extent and duration of Balikatan 02-1, the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the VFA. The Solicitor General asks that we accord due deference to the executive determination that Balikatan 02-1 is covered by the VFA, considering the Presidents monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces. Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case: Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule: x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held: Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. xxx Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others acts, this Court nevertheless resolves to take cognizance of the instant petitions.[6] Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference. The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the Balikatan is the largest such training exercise directly supporting the MDTs objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this court upheld the validity of the VFA.[7] The VFA provides the regulatory mechanism by which United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government. It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government.[8] The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity.[9] All other activities, in other words, are fair game. We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party.

(b)

3.

There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; any relevant rules of international law applicable in the relations between the parties.

(b)

(c)

4.

A special meaning shall be given to a term if it is established that the parties so intended. Article 32

Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) (b) leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention, [t]he Commissions proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties. This is not to say that the travaux prparatoires of a treaty, or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux prparatoires of a treaty was intended by the use of the phrase supplementary means of interpretation in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.[10] The Terms of Reference rightly fall within the context of the VFA. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word activities arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nations marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training exercise, falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the

conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized. That is not the end of the matter, though. Granted that Balikatan 02-1 is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat except in self-defense. We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of Balikatan 02-1, the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim Nemo potest facere per alium quod non potest facere per directum.[11] The indirect violation is actually petitioners worry, that in reality, Balikatan 021 is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit: Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: xxx xxx xxx xxx

SEC. 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. xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it 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.[12] Even more pointedly, the Transitory Provisions state: Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements. A rather recent formulation of the relation of international law vis--vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,[13] to wit: xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation. This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights. From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, [e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.[14] Further, a party to a treaty is

not allowed to invoke the provisions of its internal law as justification for its failure to perform a treaty.[15] Our Constitution espouses the opposing view. Witness our jurisdiction as stated in section 5 of Article VIII: The Supreme Court shall have the following powers: xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. xxx xxx xxx xxx

In Ichong v. Hernandez,[16] we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,[17] xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive war on Philippine territory. Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take judicial notice of the events transpiring down south,[18] as reported from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners allegation that the Arroyo government is engaged in doublespeak in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue, make factual findings on matters well beyond our immediate perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. We have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. The phrase grave abuse of discretion has a precise meaning in law, denoting abuse of discretion too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility.[19] In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.[20] Under the expanded concept of judicial power under the Constitution, courts are charged with the duty 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.[21] From the facts obtaining, we find that the holding of Balikatan 02-1 joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents. ---------------------------------------SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, vs. GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents. DISSENTING OPINION SEPARATE OPINION DE LEON, JR., J.: This case involves a petition for certiorari and prohibition as well as a petition-inintervention, praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution. The facts are as follows: Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement entered into by the Philippines and the United States in 1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of lives. On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. 2 They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention on February 11, 2002. Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved. On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which we quote hereunder: I. POLICY LEVEL 1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA). 2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties. 3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise CoDirectors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP during the FTX. 5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period. 6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise. 7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field, commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the AFP Forces. 8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense. 9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines. II. EXERCISE LEVEL 1. TRAINING a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism. b. At no time shall US Forces operate independently within RP territory. c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations. 2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise. b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels. c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources. d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors. 3. PUBLIC AFFAIRS a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City. b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces. c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials. Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4 Petitioners Lim and Ersando present the following arguments: I THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951. II NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON". Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO. In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersando's standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree. It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts. Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor General asks that we accord due deference to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces. Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case: Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that 'transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then applied the exception in many other cases. [citation omitted] This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming Corporation, where we emphatically held: Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. xxx' Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition.6 Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference. The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government.8 The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All other activities, in other words, are fair game. We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: SECTION 3. INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party . 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 : (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd unreasonable. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention , [t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are

relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.10 The Terms of Reference rightly fall within the context of the VFA. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized. That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in selfdefense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit: Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that: xxx xxx xxx xxx

SEC. 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. xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country. xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it 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."12 Even more pointedly, the Transitory Provisions state: Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state. The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements. A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit: xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation. This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights. From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle ofpacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."15 Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII: The Supreme Court shall have the following powers: xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17 xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in -( I) All cases in which the constitutionality or validity of anytreaty, law, ordinance, or executive order or regulation is in question." In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory. Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take judicial notice of the events transpiring down south,18 as reported from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well beyond our immediate perception, and this we are understandably loath to do. It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action forcertiorari. We have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is

exercised in an arbitrary and despotic manner by reason of passion and personal hostility."19 In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20 Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "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."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of error that would otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court. SO ORDERED. Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur. Kapunan, dissenting opinion. Ynares-Santiago, join the dissenting opinion. Panganiban, separate opinion. Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban