G.R No.

187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS
ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA
BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA
CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III,
GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA
GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR
RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA
IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA
SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE
PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby
territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and
the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over
their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change
was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the
Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying
with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers
or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of
Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to
maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only results in
the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their
argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of
islands to determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack
of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA
9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS
III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the countrys security, environment and economic interests or relinquish the Philippines claim over
Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that what Spain
ceded to the United States under the Treaty of Paris were the islands and all the waters found within the
boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA
9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we
find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage
and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with
constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit,
thus satisfying one of the requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave
abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as
proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no
bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one
such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it discards the
pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively
encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description,
Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles
from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of
decades-long negotiations among United Nations members to codify norms regulating the conduct of States in
the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a
limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and
the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the
rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the
Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose)
territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the
regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the
rules on general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over
that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the
livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046
and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of
RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this
view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the
wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29
Extent of maritime
area using RA Extent of maritime
3046, as amended, area using RA
taking into account 9522, taking into
the Treaty of Paris account UNCLOS
delimitation (in III (in square
square nautical nautical miles)
miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends
way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA
9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart
to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of
UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per
cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for
several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize
the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough
Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of
violating the provision of international law which states: "The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by the orange
line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa
ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule
that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1 The need to
shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became
imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III].
As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to
wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06
nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent
of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines
system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey
methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were
later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by
Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress
decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under the Republic of the
Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine States responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the
KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable maritime
zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah
in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door
for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this
Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and
sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III
affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and
subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or
distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the
status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and
conditions for their exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage
and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are
subject, in their territorial sea, to the right of innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was
a concession by archipelagic States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS
III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more
than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and
State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere
legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional
rights x x x."49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as
well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right
to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to
the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII,
Section 752 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such
a maritime delineation binds the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of
course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to
this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass
RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a
two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it weakens the countrys case
in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor,
represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents
JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by
her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA,
MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY
ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their
parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA.
and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by
their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP
JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-
generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action
to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage
of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded
as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-
profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection
of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr.,
then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this
petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by
the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all
citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land
area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological
and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have
existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per
cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table,
otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as
a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters
per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of
the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine
resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of
lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying
water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so
capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests
or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to
various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after
the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend
of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will
work great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who
may never see, use, benefit from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds
in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and
devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed
with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive
and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being.
(P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the
Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of
plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based
on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or executive branches of Government.
In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said
order, not only was the defendant's claim that the complaint states no cause of action against him and that it
raises a political question sustained, the respondent Judge further ruled that the granting of the relief prayed
for would result in the impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely
abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their
children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential
Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in
Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain
that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if
TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the
State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal
right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the
complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles
the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to
them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging
should be permitted in the country is a political question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action
to court, but to lobby before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State
without due process of law. Once issued, a TLA remains effective for a certain period of time usually for
twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has
been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No.
90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is
of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the
court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full
protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12,
Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter
being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf
of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation
of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to
the end that their exploration, development and utilization be equitably 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 self-perpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from
the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of
not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's
forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No.
192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources
"shall be the primary government agency responsible for the conservation, management, development and
proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain, as well as the
licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable
sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development and the use of the country's
natural resources, not only for the present generation but for future generations as well. It is also the policy of
the state to recognize and apply a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing
the quality of the environment and the objective of making the exploration, development and utilization of such
natural resources equitably accessible to the different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of
the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible
for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to
control and supervise the exploration, development, utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases
for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already
paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D.
No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued.
The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the
social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it
speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as
the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the
same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full
protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements
are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of 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 InMilitante vs. Edrosolano, 21 this Court laid down the rule that
the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that
happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus
be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of
the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are
indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power
to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of
"grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the
disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause
found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.
For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to
the Government by providing undue and unwarranted benefits and advantages to the timber license holders
because he would have forever bound the Government to strictly respect the said licenses according to their
terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was
aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the
Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind
any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview of
the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated
by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between
the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property
or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong
Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates
the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly
be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the
latter a permanent or irrevocable right to the particular concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so
require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
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 non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been
passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as law could have only been passed in
the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced
and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is understood
to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and
welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of private
and not of public concern. The general rule is that both shall be free of governmental interference. But neither
property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common interest.
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.

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.

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 . . . , (the reduction of) costs and uncertainty associated with exporting . . . , 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 . . . (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 proscribe Philippine integration into a global economy that is
liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2)
for the prohibition of its implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government properties and resources by
respondent-heads of various executive offices concerned therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the
President of the Philippines, 3 stating among others that "the Uruguay Round Final Act is hereby submitted to
the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of the
Philippines 4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S.
1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade
Organization." 5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of
the Agreement Establishing the World Trade Organization." 6 The text of the WTO Agreement is written on
pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes
various agreements and associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3
thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after
having seen and considered the aforementioned Agreement Establishing the World Trade Organization and the
agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify
and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement
Proper and "the associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its
integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the
Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access, national
treatment, and definitions of non-resident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and
petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the
parties thereafter filed their respective memoranda. The court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter
referred to as "Bautista Paper," 9 for brevity, (1) providing a historical background of and (2) summarizing the
said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript
of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the
multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-
volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996,
he listed the various "bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on
January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and
impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine
Constitution is "vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise
of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess
of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World
Trade Organization, and not with the Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by
petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative
power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable
Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in the Final
Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng)
are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in grave abuse
of discretion when they voted for concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
(1) The "political question" issue being very fundamental and vital, and being a matter that probes into the
very jurisdiction of this Court to hear and decide this case was deliberated upon by the Court and will thus be
ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in
respondents' favor, will not cause the petition's 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 department's duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in
our political law. 16 As explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or abandon
its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought
before it in appropriate cases, committed by any officer, agency, instrumentality or department of the
government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and
the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition
andmandamus 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
government's 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
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.
xxx xxx xxx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
Sec. 10. . . . 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.
xxx xxx xxx
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 II 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 enterprise's purchases or use of imported products be limited to an amount related to the volume or
value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided
for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under
domestic laws or under administrative rulings, or compliance with which is necessary to obtain an advantage,
and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it exports;
(b) the importation by an enterprise of products used in or related to its local production by restricting its access
to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase,
transportation, distribution or use, the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the economic operation of the means
of transport and not on the nationality of the product." (Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph
1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177,
emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords
to its own nationals with regard to the protection of intellectual property. . . (par. 1 Article 3, Agreement on
Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each
Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than it accords to its own like services and service
suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any
other Member, either formally 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
Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries
like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart
of this article in the 1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente
Sinco. 22 These principles in Article II are not intended to be self-executing principles ready for enforcement
through the courts. 23 They are used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated
vs. Morato, 24 the principles and state policies enumerated in Article II and some sections of Article XII are not
"self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not
embody judicially enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative enactments
to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article
XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and policies.
As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define
and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the legislature. If
the executive and the legislature failed to heed the directives of the article, the available remedy was not judicial
but political. The electorate could express their displeasure with the failure of the executive and the legislature
through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board 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
inOposa 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 grating 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:
Sec. 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 a grave 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.
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:
Sec. 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. . . .
xxx xxx xxx
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 ad 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 rule for its enforcement.
From its very words the provision does not require any legislation to put it in operation. It is per se judicially
enforceable." However, as the constitutional provision itself states, it is enforceable only in regard to "the grants
of rights, privileges and concessions covering national economy and patrimony" and not to every aspect of trade
and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec.
10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.
And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition
and trade practices that are unfair. 32 In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak
and developing economies, which comprise the vast majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each member's vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision will
require assent of all members. Any member may withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through the WTO than through one-
on-one negotiations with developed countries. Within the WTO, developing countries can form powerful blocs
to push their economic agenda more decisively than outside the Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO
Agreement recognize the need of developing countries like the Philippines to "share in the growth in
international trade commensurate with the needs of their economic development." These basic principles are
found in the preamble 34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view
to raising standards of living, ensuring full employment and a large and steadily growing volume of real income
and effective demand, and expanding the production of and trade in goods and services, while allowing for the
optimal use of the world's 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, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the
WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period within which the
reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed
countries to be effected within a period of six (6) years while developing countries including the Philippines
are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural
products by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten
(10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices
including anti-dumping measures, countervailing measures and safeguards against import surges. Where local
businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is
hardly therefore any basis for the statement that under the WTO, local industries and enterprises will all be
wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken into account; thus, there would be no basis
to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have made a
bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. But such decision
cannot be set aside on the ground of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction of this
case will not pass upon the advantages and disadvantages of trade liberalization as an economic policy. It will
only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic
seclusion" nor "mendicancy in the international community." As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence
on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it
means avoiding mendicancy in the international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in the development of natural
resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be
struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on "equality and reciprocity," 37 the fundamental law
encourages industries that are "competitive in both domestic and foreign markets," thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of
robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino companies should be pampered with a total proscription of
foreign competition. On the other hand, respondents claim that WTO/GATT aims to make available to the
Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the public at
large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will as promised by its
promoters expand the country's 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
frame-work 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 . . . but also to the flow of
investments and money . . . as well as to a whole slew of agreements on socio-cultural matters . . . 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 . . . 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 . . . 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 country's 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 . . . 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 (not 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. (emphasis 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 in 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 cloture, 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 frame-work 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 yesterday's session and I don't 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 Court's 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 Senate's processes, this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senate's exercise of its power of concurrence in the WTO Agreement granted it by
Sec. 21 of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods. But it is equally true that such principles while
serving as judicial and legislative guides are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a
"trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity" and the promotion of industries "which are competitive in both domestic and foreign
markets," thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the
exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation
and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and
power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in
such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97.
But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To
do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is
outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in electing their policy makers. After all, the WTO
Agreement allows withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65 where
"the East will become the dominant region of the world economically, politically and culturally in the next
century." He refers to the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy.
There are at present about 31 countries including China, Russia and Saudi Arabia negotiating for membership in
the WTO. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as
the only viable structure for multilateral trading and the veritable forum for the development of international
trade law. The alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with
original membership, keenly aware of the advantages and disadvantages 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.

G.R. No. 118910 November 16, 1995

KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,
EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO,
JOSE ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE
CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, REP.
JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and
the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.
RESOLUTION
MENDOZA, J.:
Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case has
already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its charter
(R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of association
or collaboration with any party in operating an on-line lottery. Consequently, petitioners contend, these
questions can no longer be reopened.
Because two members of the Court did not consider themselves bound by the decision in the first case,
petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in the
present case, acted otherwise than according to law. They cite the following statement in the opinion of the
Court:
The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members sustaining
petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one
that is not likely to be maintained in any subsequent litigation. In addition, there have been changes in the
membership of the Court, with the retirement of Justices Cruz and Bidin and the appointment of the writer of
this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the maintenance of the ruling
as to petitioners' standing.
Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip, that the two
new appointees, regardless of the merit of the Decision in the first Kilosbayan case against the lotto
(Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with all the Ramos
appointees who were dissenters in the first case and constitute the new majority in the second lotto case." And
petitioners ask, "why should it be so?"
Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis, detecting a
Freudian slip where none exists, may be more revealing of their own unexpressed wish to find motives where
there are none which they can impute to some members of the Court.
For the truth is that the statement is no more than an effort to explain rather than to justify the majority's
decision to overrule the ruling in the previous case. It is simply meant to explain that because the five members
of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two new
members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to
be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable
for petitioners to insist on the first ruling.
Consequently to petitioners' question "What is the glue that holds them together," implying some ulterior
motives on the part of the new majority in reexamining the two questions, the answer is: None, except a
conviction on the part of the five, who had been members of the Court at the time they dissented in the first
case, and the two new members that the previous ruling was erroneous. The eighth Justice (Padilla, J.) on the
other hand agrees with the seven Justices that the ELA is in a real sense a lease agreement and therefore does
not violate R.A. No. 1169.
The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority
(Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case was
later reversed.
It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the
Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration of
the Decision in the first lotto case and instead submit a new agreement that would be in conformity with the
PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first Kilosbayan
case against on-line, hi-tech lotto."
To be sure, a new contract was entered into which the majority of the Court finds has been purged of the
features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in the
first case was the following:
1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated May 5,
1994, a copy of which was received on May 6, 1994.
2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the authority
of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the
pronouncements of this Honorable Court in its Decision of May 5, 1995.
The PGMC made substantially the same manifestation as the PCSO.
There was thus no "formal commitment" but only a manifestation that the parties were not filing a motion
for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting Justices certainly
could not be bound thereby not to insist on their contrary view on the question of standing. Much less were the
two new members bound by any "formal commitment" made by the parties. They believed that the ruling in the
first case was erroneous. Since in their view reexamination was not barred by the doctrine of stare decisis, res
judicata or conclusiveness of judgment or law of the case, they voted the way they did with the remaining five
(5) dissenters in the first case to form a new majority of eight.
Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was
erroneousand no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with equal
candor": "Why should this not be so?"
Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of change in
the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201,
Sept. 23, 1957 that the phrase "at the time of the election" in 2174 of the Revised Administrative Code of 1917
meant that a candidate for municipal elective position must be at least 23 years of age on the date of the
election. On the other hand, the dissenters argued that it was enough if he attained that age on the day he
assumed office.
Less than three years later, the same question was before the Court again, as a candidate for municipal councilor
stated under oath in her certificate of candidacy that she was eligible for that position although she attained the
requisite age (23 years) only when she assumed office. The question was whether she could be prosecuted for
falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. Justice, later Chief Justice,
Benison, who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding
that while the statement that the accused was eligible was "inexact or erroneous, according to the majority in the
Feliciano case," the accused could not be held liable for falsification, because
the question [whether the law really required candidates to have the required age on the day of the election or
whether it was sufficient that they attained it at the beginning of the term of office] has not been discussed
anew, despite the presence of new members; we simply assume for the purpose of this decision that the doctrine
stands.
Thus because in the meantime there had been a change in the membership of the Court with the retirement of
two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and their replacement by
new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the first case was a narrow one (6
to 5), the Court allowed that the continuing validity of its ruling in the first case might well be doubted. For this
reason it gave the accused the benefit of the doubt that she had acted in the good faith belief that it was
sufficient that she was 23 years of age when she assumed office.
In that case, the change in the membership of the Court and the possibility of change in the ruling were noted
without anyone much less would-be psychoanalysts finding in the statement of the Court any Freudian
slip. The possibility of change in the rule as a result of change in membership was accepted as a sufficient
reason for finding good faith and lack of criminal intent on the part of the accused.
Indeed, a change in the composition of the Court could prove the means of undoing an erroneous decision. This
was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were passed during the Civil
War, made U.S. notes (greenbacks) legal tender for the payment of debts, public or private, with certain
exceptions. The validity of the acts, as applied to preexisting debts, was challenged in Hepburn v. Griswold, 8
Wall. 603 (1869). The Court was then composed of only eight (8) Justices because of Congressional effort to
limit the appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief Justice
Chase wrote the opinion of the Court in which four others, including Justice Grier, concurred. Justices Miller,
Swayne and Davis dissented. A private memorandum left by the dissenting Justices described how an effort was
made "to convince an aged and infirm member of the court [Justice Grier] that he had not understood the
question on which he voted," with the result that what was originally a 4-4 vote was converted into a majority
(5-3) for holding the acts invalid.
On the day the decision was announced, President Grant nominated to the Court William Strong and Joseph P.
Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the membership of the Court
to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox v. Lee came to be
known, in an opinion by Justice Strong, with a dissenting opinion by Chief Justice Chase and the three other
surviving members of the former majority. There were allegations that the new Justices were appointed for their
known views on the validity of the Legal Tender Acts, just as there were others who defended the character and
independence of the new Justices. History has vindicated the overruling of the Hepburn case by the new
majority. The Legal Tender Cases proved to be the Court's means of salvation from what Chief Justice Hughes
later described as one of the Court's "self-inflicted wounds." 1
We now consider the specific grounds for petitioners' motion for reconsideration.
I. We have held that because there are no genuine issues of constitutionality in this case, the rule
concerning real party in interest, applicable to private litigation rather than the more liberal rule on standing,
applies to petitioners. Two objections are made against that ruling: (1) that the constitutional policies and
principles invoked by petitioners, while not supplying the basis for affirmative relief from the courts, may
nonetheless be resorted to for striking down laws or official actions which are inconsistent with them and (2)
that the Constitution, by guaranteeing to independent people's organizations "effective and reasonable
participation at all levels of social, political and economic decision-making" (Art. XIII, 16), grants them
standing to sue on constitutional grounds.
The policies and principles of the Constitution invoked by petitioner read:
Art. II, 5. The maintenance of peace and order, the protection life, liberty, and property, and thepromotion of
the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
Id., 12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government.
Id., 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. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
Id., 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress, and promote total human liberation and development.
As already stated, however, these provisions are not self-executing. They do not confer rights which can be
enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding
of lottery for charity, Congress has in effect determined that consistently with these policies and principles of
the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the
PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not
illegal per se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties
Corp., Inc., 234 SCRA 255, 268 [1994]).
It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract
entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise issues of
constitutionality but only of contract law, which petitioners, not being privies to the agreement, cannot raise.
Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the validity
of the contract in this case. The Constitution provides that "the State shall respect the role of independent
people's organizations to enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful means," that their right to
"effective and reasonable participation at all levels of social, political, and economic decision-making shall not
be abridged." (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in interest or those with standing, as
the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving
constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement
lies at the very heart of the judicial function. It is what differentiates decision-making in the courts from
decision-making in the political departments of the government and bars the bringing of suits by just any party.
Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional Commission,
explaining the provisions on independent people's organizations. There is nothing in the speech, however, which
supports their claim of standing. On the contrary, the speech points the way to the legislative and executive
branches of the government, rather than to the courts, as the appropriate fora for the advocacy of petitioners'
views. 2 Indeed, the provisions on independent people's organizations may most usefully be read in connection
with the provision on initiative and referendum as a means whereby the people may propose or enact laws or
reject any of those passed by Congress. For the fact is that petitioners' opposition to the contract in question is
nothing more than an opposition to the government policy on lotteries.
It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned citizens in
cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed
been allowed to sue but then only (1) in cases involving constitutional issues and
(2) under certain conditions. Petitioners do not meet these requirements on standing.
Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds.
(Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay
Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or
where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA
630 [1994]) Voters are allowed to question the validity of election laws because of their obvious interest in the
validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the
constitutional question they raise is of "transcendental importance" which must be settled early. (Emergency
Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121
Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317
[1991]) Legislators are allowed to sue to question the validity of any official action which they claim infringes
their prerogatives qualegislators. (Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659
(1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v.
Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J., concurring))
Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an interest as
taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao
v.Comelec, 95 SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition
do said petitioners allege that their tax money is "being extracted and spent in violation of specific
constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works,
110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional
law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no
assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking
through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit
should be entertained. (Emphasis added)
Petitioners' suit does not fall under any of these categories of taxpayers' suits.
Neither do the other cases cited by petitioners support their contention that taxpayers have standing to question
government contracts regardless of whether public funds are involved or not. In Gonzales v. National Housing,
Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment of a contract between the
NHC and a foreign corporation. The case was dismissed by the trial court. The dismissal was affirmed by this
Court on the grounds of res judicata and pendency of a prejudicial question, thus avoiding the question of
petitioner's standing.
On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a contract
made by the government with a foreign corporation for the purchase of road construction equipment. The
question of standing was not discussed, but even if it was, petitioner's standing could be sustained because he
was a minority stockholder of the Philippine National Bank, which was one of the defendants in the case.
In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of the
city council were allowed to sue to question the validity of a contract entered into by the city government for the
purchase of road construction equipment because their contention was that the contract had been made without
their authority. In addition, as taxpayers they had an interest in seeing to it that public funds were spent pursuant
to an appropriation made by law.
But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated. The
controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds raised
from contributions for the benefit of the Cultural Center of the Philippines were not public funds and petitioner
had no standing to bring a taxpayer's suit to question their disbursement by the President of the Philippines.
Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring this
suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of Congress,
their right to sue as legislators cannot be invoked because they do not complain of any infringement of their
rights as legislators.
Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning another
form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen, lawyer,
taxpayer and father of three minor children," had no direct and personal interest in the lottery. We said: "He
must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of." In the case at bar, petitioners have not shown why, unlike petitioner in the
Valmonte case, they should be accorded standing to bring this suit.
The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit seeking
the cancellation of timber licenses was sustained in that case because the Court considered Art. II, 16 a right-
conferring provision which can be enforced in the courts. That provision states:
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. (Emphasis)
In contrast, the policies and principles invoked by petitioners in this case do not permit of such categorization.
Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries which
they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to decide and
Congress has permitted lotteries for charity.
Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped there and
dismissed their case. For in the view we take, whether a party has a cause of action and, therefore, is a real party
in interest or one with standing to raise a constitutional question must turn on whether he has a right which has
been violated. For this reason the Court has not ducked the substantive issues raised by petitioners.
II. R.A. No. 1169, as amended by B.P No . 42, states:
1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter
designated the Office, shall be the principal government agency for raising and providing for funds for health
programs, medical assistance and services and charities of national character, and as such shall have the general
powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended,
and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and
manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board
of Directors.
B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related
investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration,
association or joint venture with any person, association, company or entity, whether domestic or foreign,
except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent
and continuing sources of funds for health programs, including the expansion of existing ones, medical
assistance and services, and/or charitable grants: Provided, That such investments will not compete with the
private sector in areas where investments are adequate as may be determined by the National Economic and
Development Authority.
Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity sweepstakes,
lotteries and other similar activities in collaboration, association or joint venture with any other party because of
the clause "except for the activities mentioned in the preceding paragraph (A)" in paragraph (B) of 1.
Petitioners contend that the ruling is the law of this case because the parties are the same and the case involves
the same issue, i.e., the meaning of this statutory provision.
The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one. Petitioners
also say that inquiry into the same question as to the meaning of the statutory provision is barred by the doctrine
of res judicata. The general rule on the "conclusiveness of judgment," however, is subject to the exception that
a question may be reopened if it is a legal question and the two actions involve substantially different claims.
This is generally accepted in American law from which our Rules of Court was adopted. (Montana v. United
States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, 28; P.
BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to suggest that this exception is
inapplicable in this jurisdiction.
Indeed, the questions raised in this case are legal questions and the claims involved are substantially different
from those involved in the prior case between the parties. As already stated, the ELA is substantially different
from the Contract of Lease declared void in the first case.
Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in
collaboration, association or joint venture with any other party" qualifies not only 1 (B) but also 1 (A),
because the exception clause ("except for the activities mentioned in the preceding paragraph [A]") "operates, as
it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the necessity of
simultaneously amending the text of Section 1(A)."
This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B),
when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the phrase
"by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . . investments,
programs, projects and activities" if these involve sweepstakes races, lotteries and other similar activities not
only "in collaboration, association or joint venture" with any other party but also "by itself." Obviously, this
prohibition cannot apply when the PCSO conducts these activities itself. Otherwise, what paragraph (A)
authorizes the PCSO to do, paragraph (B) would prohibit.
The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A), but
rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42 was
intended to enable the PCSO to engage in certain investments, programs, projects and activities for the purpose
of raising funds for health programs and charity. That is why the law provides that such investments by the
PCSO should "not compete with the private sector in areas where investments are adequate as may be
determined by the National Economic and Development Authority." Justice Davide, then an Assemblyman,
made a proposal which was accepted, reflecting the understanding that the bill they were discussing concerned
the authority of the PCSO to invest in the business of others. The following excerpt from the Record of the
Batasan Pambansa shows this to be the subject of the discussion:
MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not to leave
the determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate" the
words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the
determination of whether the private sector's activity is already adequate must be determined by the National
Economic and Development Authority.
Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment.
MR. DAVIDE. Thank you, Mr. Speaker.
(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979,
p. 1007)
Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes races,
lotteries and other similar activities. It is prohibited from doing so whether "in collaboration, association or
joint venture" with others or "by itself." This seems to be the only possible interpretation of 1 (A) and (B) in
light of its text and its legislative history. That there is today no other entity engaged in sweepstakes races,
lotteries and the like does not detract from the validity of this interpretation.
III. The Court noted in its decision that the provisions of the first contract, which were considered to be features
of a joint venture agreement, had been removed in the new contract. For instance, 5 of the ELA provides that
in the operation of the on-line lottery, the PCSO must employ "its own competent and qualified personnel."
Petitioners claim, however, that the "contemporaneous interpretation" of PGMC officials of this provision is
otherwise. They cite the testimony of Glen Barroga of the PGMC before a Senate committee to the effect that
under the ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as part of
the transfer of technology.
Whether the transfer of technology would result in a violation of PCSO's franchise should be determined by
facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to the
contrary, it must be presumed that 5 reflects the true intention of the parties. Thus, Art. 1370 of the Civil Code
says that "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the
literal meaning of its stipulations shall control." The intention of the parties must be ascertained from their
"contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166
[1908]) It cannot simply be judged from what one of them says. On the other hand, the claim of third parties,
like petitioners, that the clause on upgrading of equipment would enable the parties after a while to change the
contract and enter into something else in violation of the law is mere speculation and cannot be a basis for
judging the validity of the contract.
IV. It is contended that 1 of E.O. No. 301 covers all types of "contract[s] for public services or for
furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or
instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like the
ELA, must be submitted to public bidding in order to be valid. This contention is based on two premises: (1)
that 1 of E.O. No. 301 applies to any contract whereby the government acquires title to or the use of the
equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from each other so that
when an exception in 1 speaks of "supplies," it cannot be construed to mean "equipment."
Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a), which
provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt from public
bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy equipment needed
for rescue operations in case of a calamity will have to be submitted to public bidding before it can be entered
into by the government.
In dissent Justice Feliciano says that in such a situation the government can simply resort to expropriation,
paying compensation afterward. This is just like purchasing the equipment through negotiation when the
question is whether the purchase should be by public bidding, not to mention the fact that the power to
expropriate may not be exercised when the government can very well negotiate with private owners.
Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, 1 covers both
contracts of sale and lease agreements and (2) that the words "supplies," "materials" and "equipment" can not be
interchanged. Thus, under paragraph (b) of 1, public bidding is not required "whenever the supplies are to be
used in connection with a project or activity which cannot be delayed without causing detriment to the public
service." Following petitioners' theory, there should be a public bidding before the government can enter into a
contract for the lease of bulldozers and dredging equipment even if these are urgently needed in areas ravaged
by lahar because, first, lease contracts are covered by the general rule and, second, the exception to public
bidding in paragraph (b) covers only "supplies" but not equipment.
To take still another example. Paragraph (d), which does away with the requirement of public bidding
"whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive
times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to
specifications." Again, following the theory of the petitioners, a contract for the lease of equipment cannot be
entered into even if there are no bids because, first, lease contracts are governed by the general rule on public
bidding and, second, the exception to public bidding in paragraph (d) applies only to contracts for the furnishing
of "supplies."
Other examples can be given to show the absurdity of interpreting 1 as applicable to any contract for the
furnishing of supplies, materials and equipment and of considering the words "supplies," "materials" and
"equipment" to be not interchangeable. Our ruling that 1 of E.O. No. 301 does not cover the lease of
equipment avoids these fundamental difficulties and is supported by the text of 1, which is entitled "Guidelines
forNegotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases, namely, 6 and 7,
concern the lease of buildings by or to the government. Thus the text of 1 reads:
1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order or other issuances to
the contrary notwithstanding, no contract for public services or for furnishing supplies, materials and equipment
to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without
public bidding, except under any of the following situations:
a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger
to, life and/or property;
b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed
without causing detriment to the public service;
c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers
selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous
terms to the government;
d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant or non-
conforming to specifications;
e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most
advantageous to the government to be determined by the Department Head concerned; and
f. Whenever the purchase is made from an agency of the government.
Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of
reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well as
lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required consultation
with the Secretary of Justice and the Department Head concerned and the approval of the President of the
Philippines before contracts for the furnishing of supplies, materials and equipment could be made on a
negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows:
2. Jurisdiction over Negotiated Contracts. In line with the principles of decentralization and accountability,
negotiated contracts for public services or for furnishing supplies, materials or equipment may be entered into
by the department or agency head or the governing board of the government-owned or controlled corporation
concerned, without need of prior approval by higher authorities, subject to availability of funds, compliance
with the standards or guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the commission
on Audit in accordance with existing rules and regulations.
Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two other
Undersecretaries.
xxx xxx xxx
7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privately-owned buildings or
spaces for their use, or to lease out government-owned buildings or spaces for private use, shall have authority
to determine the reasonableness of the terms of the lease and the rental rates thereof, and to enter into such lease
contracts without need of prior approval by higher authorities, subject to compliance with the uniform standards
or guidelines established pursuant to Section 6 hereof by the DPWH and to the audit jurisdiction of COA or its
duly authorized representative in accordance with existing rules and regulations.
In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was
merely to change the system of administrative review of emergency purchases, as theretofore prescribed by
E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of
buildings, not of equipment, and therefore does not govern the lease contract in this case. Even if it applies, it
does not require public bidding for entering into it.
Our holding that E.O. No. 301, 1 applies only to contracts of purchase and sale is conformable to P.D. No. 526,
promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local governments to hold
public bidding in the "procurement of supplies." By specifying "procurement of supplies" and excepting from
the general rule "purchases" when made under certain circumstances, P.D. No. 526, 12 indicates quite clearly
that it applies only to contracts of purchase and sale. This provision reads:
12. Procurement without public bidding. Procurement of supplies may be made without the benefit of
public bidding in the following modes:
(1) Personal canvass of responsible merchants;
(2) Emergency purchases;
(3) Direct purchases from manufacturers or exclusive distributors;
(4) Thru the Bureau of Supply Coordination; and
(5) Purchase from other government entities or foreign governments.
Sec. 3 broadly defines the term "supplies" as including
everything except real estate, which may be needed in the transaction of public business, or in the pursuit of any
undertaking, project, or activity, whether of the nature of equipment, furniture, stationery, materials for
construction, or personal property of any sort, including non-personal or contractual services such as the repair
and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or
analogous services.
Thus, the texts of both E.O. No. 301, 1 and of P.D. No. 526, 1 and 12, make it clear that only contracts for
the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning public
biddings.
Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of purchase
and sale because of "multifarious credit and tax constraints" and therefore could not have been left out from the
requirement of public bidding. Obviously these credit and tax constraints can have no attraction to the
government when considering the advantages of sale over lease of equipment. The fact that lease contracts are
in common use is not a reason for implying that the rule on public bidding applies not only to government
purchases but also to lease contracts. For the fact also is that the government leases equipment, such as copying
machines, personal computers and the like, without going through public bidding.
FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID
J. LOZADA, AND DR. NEMESIO T. GAKO,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk.
There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of
course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end
be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as
it contains provisions that are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department
of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of
the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses
of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to
2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and
protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child mortality,
and ensure that all segments of society, specially parents and children, are informed of the advantages of
breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing
the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The
Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land
and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord
with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint
of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on
Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court
adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses the
legal identity of an association with that of its members. An association has standing to file suit for its
workers despite its lack of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower recruitment
industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein.
The respondent is, thus, the appropriate party to assert the rights of its members, because it and its
members are in every practical sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the expression of their voices and the
redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an
association has the legal personality to represent its members because the results of the case will affect their
vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed "to represent directly or through approved representatives the
pharmaceutical 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 RIRR
WHEREAS, in order to ensure that safe and Section 2. Purpose These Revised Rules
adequate nutrition for infants is provided, and Regulations are hereby promulgated to
there is a need to protect and promote ensure the provision of safe and adequate
breastfeeding and to inform the public about nutrition for infants and young children by
the proper use of breastmilk substitutes and the promotion, protection and support of
supplements and related products through breastfeeding and by ensuring the proper use
adequate, consistent and objective of breastmilk substitutes, breastmilk
information and appropriate regulation of the supplements and related products when these
marketing and distribution of the said are medically indicated and only when
substitutes, supplements and related products; necessary, on the basis of adequate
SECTION 4(e). "Infant" means a person information and through appropriate
falling within the age bracket of 0-12 months. marketing and distribution.
Section 5(ff). "Young Child" means a person
from the age of more than twelve (12)
months up to the age of three (3) years (36
months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in
certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that
"there is no substitute nor replacement for breastmilk":
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles The
adequate nutrition for infants is provided, following are the underlying principles from
there is a need to protect and promote which the revised rules and regulations are
breastfeeding and to inform the public about premised upon:
the proper use of breastmilk substitutes and a. Exclusive breastfeeding is for infants from
 supplements and related products through 0 to six (6) months.
adequate, consistent and objective b. There is no substitute or replacement for
information and appropriate regulation of the breastmilk.
marketing and distribution of the said
substitutes, supplements and related products;
3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion;
RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24
months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which
provides for a "total effect" in the promotion of products within the scope of the Code, is vague:
MILK CODE RIRR
SECTION 6. The General Public and Section 4. Declaration of Principles The
Mothers. following are the underlying principles from
(a) No advertising, promotion or other which the revised rules and regulations are
marketing materials, whether written, audio premised upon:
or visual, for products within the scope of xxxx
this Code shall be printed, published, f. Advertising, promotions, or sponsor-
distributed, exhibited and broadcast unless shipsof infant formula, breastmilk substitutes
such materials are duly authorized and and other related products are prohibited.
approved by an inter-agency Section 11. Prohibition No advertising,
committee created herein pursuant to the promotions, sponsorships, or marketing
applicable standards provided for in this materials and activities for breastmilk
Code. substitutes intended for infants and young
children up to twenty-four (24) months, shall
be allowed, because they tend to convey or
give subliminal messages or impressions that
undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related
products covered within the scope of this
Code.
Section 13. "Total Effect" - Promotion of
products within the scope of this Code must
be objective and should not equate or make
the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and unsubstantiated
claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts, pictures, illustrations or information
which discourage or tend to undermine the
benefits or superiority of breastfeeding or
 which idealize the use of breastmilk
substitutes and milk supplements. In this
connection, no pictures of babies and
children together with their mothers, fathers,
siblings, grandparents, other relatives or
caregivers (or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;
b. The term "humanized," "maternalized,"
"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims
for products within the scope of the Code are
absolutely prohibited. For this purpose, any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant
and young child and other like phrases shall
not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE RIRR
SECTION 10. Containers/Label. Section 26. Content Each container/label
(a) Containers and/or labels shall be designed shall contain such message, in both Filipino
to provide the necessary information about and English languages, and which message
the appropriate use of the products, and in cannot be readily separated therefrom,
such a way as not to discourage relative the following points:
breastfeeding. (a) The words or phrase "Important Notice"
(b) Each container shall have a clear, or "Government Warning" or their equivalent;
conspicuous and easily readable and (b) A statement of the superiority of
understandable message in Pilipino or breastfeeding;
English printed on it, or on a label, which (c) A statement that there is no substitute for
message can not readily become separated breastmilk;
from it, and which shall include the following (d) A statement that the product shall be used
points: only on the advice of a health worker as to
(i) the words "Important Notice" or their the need for its use and the proper methods of
equivalent; use;
(ii) a statement of the superiority of (e) Instructions for appropriate prepara-tion,
breastfeeding; and a warning against the health hazards of
(iii) a statement that the product shall be used inappropriate preparation; and
only on the advice of a health worker as to (f) The health hazards of unnecessary or
the need for its use and the proper methods of improper use of infant formula and other
use; and related products including information that
(iv) instructions for appropriate preparation, powdered infant formula may contain
and a warning against the health hazards of pathogenic microorganisms and must be
inappropriate preparation. prepared and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR
totally prohibits such activity:
MILK CODE RIRR
SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or
 (b) No facility of the health care system shall representatives of products covered by the
be used for the purpose of promoting infant Code shall be allowed to conduct or be
formula or other products within the scope of involved in any activity on breastfeeding
this Code. This Code does not, however, promotion, education and production of
preclude the dissemination of information to Information, Education and Communication
health professionals as provided in Section (IEC) materials on breastfeeding, holding of
8(b). or participating as speakers in classes or
SECTION 8. Health Workers. - seminars for women and children activities
(b) Information provided by manufacturers and to avoid the use of these venues to
and distributors to health professionals market their brands or company names.
regarding products within the scope of this SECTION 16. All health and nutrition
Code shall be restricted to scientific and claims for products within the scope of the
factual matters and such information shall not Code are absolutely prohibited. For this
imply or create a belief that bottle-feeding is purpose, any phrase or words that connotes to
equivalent or superior to breastfeeding. It increase emotional, intellectual abilities of
shall also include the information specified in the infant and young child and other like
Section 5(b). 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 RIRR
SECTION 8. Health Workers Section 4. Declaration of Principles
(e) Manufacturers and distributors of The following are the underlying principles
products within the scope of this Code may from which the revised rules and regulations
assist in the research, scholarships and are premised upon:
continuing education, of health i. Milk companies, and their
professionals,in accordance with the rules representatives,should not form part of any
and regulations promulgated by the Ministry policymaking body or entity in relation to the
of Health. advancement of breasfeeding.
SECTION 22. No manufacturer, distributor,
or representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of
or participating as speakers in classes or
seminars for women and children
activitiesand to avoid the use of these venues
to market their brands or company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE RIRR
 SECTION 6. The General Public and
Mothers.
(f) Nothing herein contained shall prevent
donations from manufacturers and
distributors of products within the scope of regulations, shall be strictly prohibited.
this Code upon request by or with the
approval of the Ministry of Health.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
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
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.
RIRR
Section 46. Administrative Sanctions. The
following administrative sanctions shall be
imposed upon any person, juridical or
natural, found to have violated the provisions
of the Code and its implementing Rules and
Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the
violation, including the recall of the
offending product;
c) 3rd violation Administrative Fine of a
minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00)
Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the
recall of the offending product, and
suspension of the Certificate of Product
Registration (CPR);
d) 4th violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos, depending on
the gravity and extent of the violation; and in
addition thereto, the recall of the product,
revocation of the CPR, suspension of the
License to Operate (LTO) for one year;
e) 5th and succeeding repeated violations
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR,
revocation of the License to Operate (LTO)
 of the company concerned, including the
blacklisting of the company to be furnished
the Department of Budget and Management
(DBM) and the Department of Trade and
Industry (DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per day
shall be made for every day the violation
continues after having received the order
from the IAC or other such appropriate body,
notifying and penalizing the company for the
infraction.
For purposes of determining whether or not
there is "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, are
deemed to be violations of the concerned
milk company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old.
Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the
following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages,
including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or
without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also
applies to their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food, and
breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal
nutritional requirements of infants up to between four to six months of age, and adapted to their physiological
characteristics"; while under Section 4(b), bottle-fed complementary food refers to "any food, whether
manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when either
becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a
person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged
0-12 months that is sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being
marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that
purpose."This section conspicuously lacks reference to any particular age-group of children. Hence, the
provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other words,
breastmilk substitutes may also be intended for young children more than 12 months of age. Therefore, by
regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children
more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3,
then it can be subject to regulation pursuant to said law, even if the product is to be used by children aged over
12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As
held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must be considered in fixing the
meaning of any of its parts and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk
substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that
information and educational materials should include information on the proper use of infant formula when the
use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk
substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are
valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as
defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in
exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to
further discuss it..48 However, health information, particularly advertising materials on apparently non-toxic
products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already
within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the
duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic
information among the people and especially the inculcation of knowledge as to the proper care of infantsand
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 populationon
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 informationshall
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-visbreastmilk substitutes be consistent, at the same time giving the government control over
planning, provision, design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a
substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the
Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the
following points: x x x (5) where needed, the proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods or feeding methods;
and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof. The buyers of
breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the
likelihood of pathogenic microorganisms being present in infant formula and other related products when these
are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula that
eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding
health hazards including the possibility of contamination with pathogenic microorganisms is in accordance with
Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of advertising,
promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within
the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are
duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards
provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC,
thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is
hereby created:
Minister of Health ------------------- Chairman

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

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

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

The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or
visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication,
distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether
written, audio or visual, on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the implementation of
Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products
covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes
in line with the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products
are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the
IAC but also imposed absolute prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for
prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the
oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute
prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides
is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states that no
advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard they tend to convey or
give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for
the inter agency committee that is empowered to process and evaluate all the advertising and promotion
materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency
Committee that processes and evaluates because there may be some information dissemination that are straight
forward information dissemination. What the AO 2006 is trying to prevent is any material that will undermine
the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and
Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency
Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk
substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended
for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some
advertising and promotional materials, subject to the standards that we have stated earlier, which are- they
should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12
and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to
evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding
infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or
rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said
provision must be related to Section 6 thereof which in turn provides that the rules and regulations must be
"pursuant to the applicable standards provided for in this Code." Said standards are set forth in Sections 5(b),
8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of
infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the
following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for
and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may
idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within
the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply
or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of
the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino
or English printed on it, or on a label, which message can not readily become separated from it, and which shall
include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and
the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement
of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states
that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for
use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional,
or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as
follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not
directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater
love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated
and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over the information content of advertising,
promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements and other
related products. It also sets a viable standard against which the IAC may screen such materials before they are
made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and
equity," "public convenience and welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that
there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk
Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health
professionals but suchinformation is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health
professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials regarding breastfeeding that are intended
forwomen and children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to
extend assistance in research and in the continuing education of health professionals, while Sections 22 and 32
of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking body in relation to the advancement of
breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any
policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH
which shall be principally responsible for the implementation and enforcement of the provisions of said Code.
It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not
pertain to research assistance to or the continuing education of health professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR prohibits
milk companies from giving assistance for research or continuing education to health professionals; hence,
petitioner's argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide
thatresearch assistance for health workers and researchers may be allowed upon approval of an ethics
committee, and with certain disclosure requirements imposed on the milk company and on the recipient
of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational assistance may
be given by milk companies or under what conditions health workers may accept the assistance. Thus, Sections
9 and 10 of the RIRR imposing limitations on the kind of research done or extent of assistance given by milk
companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support,
logistics or training to health workers. This provision is within the prerogative given to the DOH under Section
8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist
in researches, scholarships and the continuing education, of health professionals in accordance with the rules
and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section
6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk
substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of
donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such
donations. The DOH then appropriately exercised its discretion through Section 5175 of the RIRR which sets
forth its policy not to request or approve donations from manufacturers and distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from
milk companies not covered by the Code should be coursed through the IAC which shall determine whether
such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the
Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is,
therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the
DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk
Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring
difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil
Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose
fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to
review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase
or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose
fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to
fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the
DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code
authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on products
covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on violators of the
provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this
Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine
of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both.
Should the offense be committed by a juridical person, the chairman of the Board of Directors, the president,
general manager, or the partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the pursuit
of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in the event of
repeated violations of this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent
with these revised rules and implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to
make rules and regulations which results in delegated legislation that is within the confines of the granting
statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers.78 Such
express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal the
same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner
by which they are to implement the provisions of a law,80 in order to make it more responsive to the times.
Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in
contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in
consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive,
and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of
trade and because a provision therein is inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the
trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regulation for the
public good. Public interest must be upheld over business interests.90 In Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut
Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene whenever necessary to promote the
general welfare." There can be no question that the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not
call for removal of protective regulations." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and
underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said
section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula,
follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other
description of such nature, including their representatives who promote or otherwise advance their commercial
interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the
business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope
of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor or
broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business or
function (whether directly or indirectly or through an agent or and entity controlled by or under contract with it)
of manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined
separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w)
the products manufactured or distributed by an entity that would qualify it as a "milk company," whereas in the
Milk Code, what is used is the phrase "products within the scope of this Code." Those are the only differences
between the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors,
the Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of
"milk company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the
Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any
change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined
under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective,
purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public
health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they
violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order
No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of
Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
 Republic of the Philippines
Congress of the Philippines
Metro Manila

Fourteenth Congress
Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand eight.

Republic Act No. 9522 March 10, 2009

AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO. 3046, AS AMENDED

BY REPUBLIC ACT NO. 5446, TO DEFINE THE ARCHIPELAGIC BASELINE OF THE
PHILIPPINES AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Section 1 of Republic Act No. 3046, entitled "An Act to Define the Baselines of the Territorial Sea of
the Philippines", as amended by Section 1 of Republic Act No. 5446, is hereby amended to read as follows:

Section 1. The baselines of the Philippines archipelago are hereby defined and described specifically as
follows:

Basepoint Station Location World Geodetic System of 1984 Distance

Number Name (WGS 84) Coordinates to next
basepoint
(M)
Latitude (N) Longitude (E)

1 PAB-01 Amianan Is. 21657.73" 1215727.71" 70.08

2 PAB-02 Balintang Is. 195738.19" 122946.32" 99.17

3 PAB-04 Bigan Pt. 181835.30" 1222019.07" 71.83

4 PAB-05A Ditolong Pt. 17716.30" 1223128.34" 1.05

5 PAB-05B Ditolong Pt. 17614.79" 1223143.84" 0.39

6 PAB-05 Ditolong Pt. 17551.31" 1223142.66" 3.29

7 PAB-06 Spires Is. 17236.91" 122313.28" 9.74

8 PAB-06B Digollorin Pt. 165918.03" 1222756.61" 3.51

9 PAB-06C Digollorin Rk. 164956.11" 1222650.78" 2.40

10 PAB-07 Divimisa Pt. 164738.86" 122264.40" 30.94

11 PAB-08 Dinoban Pt. 161844.33" 1221406.69" 116.26

12 PAB-10A Tinaga Is. 142954.43" 1225751.15" 80.29

13 PAB-11 Horodaba Rk. 146.29.91" 1241659.21" 0.54

14 PAB-12 Matulin Rk. 146.10.40" 1241726.28" 96.04

15 PAB-13 Atalaya Pt. 12416.37" 125353.71" 6.79

16 PAB-13A Bacan Is. 123618.41" 125850.19" 5.52

17 PAB-14 Finch Rk. 1232.33.62" 1251259.70" 0.80

18 PAB-14A Cube Rk. 1231.57.45" 1251332.37" 4.90

19 PAB-14D NW Manjud Pt. 122836.42" 1251712.32" 1.30

20 PAB-15 SE Manjud Pt. 122737.51" 125185.23" 7.09

21 PAB-16A S Sorz Cay 122141.64" 125237.41" 5.68

22 PAB-16B Panablihon 121727.17" 125270.12" 5.21

23 PAB-16C Alugon 121321.95" 1253019.47" 1.94

24 PAB-16D N Bunga Pt. 121148.16" 1253130.88" 0.54

25 PAB-17 E Bunga Pt. 121120.67" 1253148.29" 5.71

26 PAB-18A SE Tobabao Is. 1267.00" 1253411.94" 83.94

27 PAB-19C Suluan Is. 104516.70" 125588.78" 56.28

28 PAB-19D N Tuason Pt. 94959.58" 126106.39" 57.44

29 PAB-20A Arangasa Is. 85316.62" 1262048.81" 40.69

30 PAB-21B Sanco Pt. 81311.53" 1262853.25" 30.80

31 PAB-22 Bagoso Is 74245.02" 1263429.08" 12.95

32 PAB-22C Languyan 72949.47" 1263559.24" 0.54

33 PAB-23 Languyan 72916.93" 1263559.50" 0.76

34 PAB-23B Languyan 72830.97" 1263557.30" 1.2

35 PAB-23C N Baculin Pt. 72729.42" 1263551.31" 10.12

36 PAB-24 Pusan Pt. 71719.80" 1263618.26" 1.14

37 PAB-24A S Pusan Pt. 71614.43" 1263557.20" 63.28

38 PAB-25B Cape San Agustin 61714.73" 1261214.40" 1.28

39 PAB-25 Cape San Agustin 6168.35" 1261135.06" 67.65

40 PAB-26 SE Sarangani Is. 52334.20" 1252842.11" 0.43

41 PAB-27 Pangil Bato Pt. 52321.80" 1252819.59" 3.44

42 PAB-28 Tapundo Pt. 62155.66" 1262511.21" 3.31

43 PAB-29 W Calia Pt. 52158.48" 1252152.03" 0.87

44 PAB-30 Manamil Is. 5222.91" 1252059.73" 1.79

45 PAB-31 Marampog Pt. 52320.18" 1251944.29" 78.42

46 PAB-32 Pola Pt. 698.44" 1241542.81" 122.88

47 PAB-33A Kantuan Is 62647.22" 12213.34.50" 29.44

48 PAB-34A Tongguil Is. 6233.77" 1215636.20" 2.38

49 PAB-35 Tongquil Is 618.51" 1215441.45" 1.72

50 PAB-35A Tongquil Is. 6017.88" 1216311.17" 85.94

51 PAB-38A Kirapusan Is 512.8.70" 1204138.14" 55.24

52 PAB-39 Manuk Manka Is. 44739.24" 1195158.08" 43.44

53 PAB-40 Frances Reef 42453.84" 1191450.71 0.61

54 PAB-40A Frances Reef 4253.83" 1191415.15" 15.48

55 PAB-41A Bajapa Reef 436"9.01" 119322.75" 6.88

56 PAB-42A Paguan Is. 44252.07" 119144.04" 8.40

57 PAB-43 Alice Reef 44555.25" 119315.19" 2.28

58 PAB-44 Alice Reef 4475.36" 119512.94" 18.60

59 PAB-45 Omapoy Rk. 45510.45" 119221.30 23.37

60 PAB-46 Bukut Lapis Pt. 5223.73" 1194418.14" 44.20

61 PAB-47 Pearl Bank 54635.15" 1193951.77" 75.17

62 PAB-48 Bagnan Is. 6558.41" 1182657.30" 8.54

63 PAB-48A Taganak Is 6414.08" 1181833.33" 13.46

64 PAB-49 Great Bakkungaan 6114.65" 118654.15" 3.97

Is.

65 PAB-50 Libiman Is. 61339.90" 118352.09" 5.53

66 PAB-51 Sibaung Is. 61743.99" 11805.44" 41.60

67 PAB-52 Muligi Is. 65214.53" 1182340.49" 75.06

68 PAB-53 South Mangsee Is. 73026.05" 1171833.75" 26.00

69 PAB-54 Balabac Is. 74830.69" 1165939.18" 6.08

70 PAB-54A Balabac Great Reef 75127.17" 1165417.19" 1.18

71 PAB-54B Balabac Great Reef 75219.86" 1165328.73" 2.27

72 PAB-55 Balabac Great Reef 75436.35" 1165316.64" 5.42

73 PAB-60 Ada Reef 820.26" 1165410.04" 10.85

74 PAB.61 Secam Is. 81118.36" 1165951.87" 30.88

75 PAB-62 Latua Pt. 88756.37" 1171551.23" 7.91

76 PAB-63 SW Tatub Pt. 84417.40" 1172039.37" 11.89

77 PAB-63A W Sicud Pt. 85332.20" 1172815.78" 13.20

78 PAB-64 Tarumpitao Pt. 92.57.47" 1173738.88" 81.12

79 PAB.64B Dry Is. 95922.54" 1183653.61" 82.76

80 PAB-65C Sinangcolan Pt. 111319.82" 1191517.74" 74.65

81 PAB-67 Pinnacle Rk. 121935.22" 1195056.00 93.88

82 PAB-68 Cabra Is 135324.45" 12015.86" 115.69

83 PAB-71 Hermana Mayor Is. 154843.61" 1194656.09" 9.30

84 PAB-72 Tambobo Pt. 155761.67" 1194455.32" 12.06

85 PAB-72B Rena Pt. 16957.90" 11945.15.76" 0.25

86 PAB-73 Rena Pt. 161012.42" 1194511.95" 6.43

87 PAB-74 Rocky Ledge 161634.46" 1194619.50" 0.65

88 PAB-74A Piedra Pt. 163712.70" 1194628.62" 1.30

89 PAB-75 Piedra Pt. 161829.49" 1194644.94" 1.04

90 PAB-75C Piedra Pt. 161928.20" 119477.69" 0.63

91 PAB-75D Piedra Pt. 16204.38" 1194720.48" 80.60

92 PAB-76 Dile Pt. 173424.94" 1202033.36" 6.86

93 PAB-77 Pinget Is. 174117.56" 120212.20" 14.15

94 PAB-78 Baboc Is. 17554.13" 1202440.56" 35.40

95 PAB-79 Cape Bojeador 182932.42" 1203342.41" 1.77

96 PAB-79B Bobon 183052.88" 1203455.35" 58.23

 97 PAB-80 Calagangan Pt. 191014.78" 1211252.64" 98.07

98 PAB-82 Itbayat Is. 204315.74" 1214657.80" 25.63

99 PAB-83 Amianan Is 21717.47" 1215643.85" 0.08

100 PAB-84 Amianan Is. 21718.41" 1215648.79" 0.25

101 PAB-85 Amianan Is. 21712.04" 121573.65" 0.44

Section 2. The baseline in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and

b) Bajo de Masinloc, also known as Scarborough Shoal.

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over
all portions of the national territory as defined in the Constitution and by provisions of applicable laws
including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991,
as amended.

Section 4. This Act, together with the geographic coordinates and the chart and maps indicating the aforesaid
baselines, shall be deposited and registered with the Secretary General of the United Nations.

Section 5. The National Mapping and Resource Information Authority (NAMRIA) shall forthwith produce and
publish charts and maps of the appropriate scale clearly representing the delineation of basepoints and baselines
as set forth in this Act.

Section 6. The amount necessary to carry out the provisions of this Act shall be provided in a supplemental
budyet or included in the General Appropriations Act of the year of its enactment into law.

Section 7. If any portion or provision of this Act is declared unconstitutional or invalid the other portions or
provisions hereof which are not affected thereby shall continue to be in full force and effect.

Section 8. The provisions of Republic Act No. 3046, as amended by Republic Act No. 5446, and all other laws,
decrees, executive orders, rules and issuances inconsistent with this Act are hereby amended or modified
accordingly.
Section 9. This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any
two (2) newspaper of general circulation.

Approved

(Sgd.) PROSPERO C. (Sgd.) JUAN PONCE ENRILE

NOGRALES President of the Senate
Speaker of the House of
Representatives

This Act which is a consolidation of Senate Bill No. 2699 and House Bill No. 3216 was finally passed by the
Senate and the House of Representative on February 17, 2009.

(Sgd.) MARILYN B. BARUA- (Sgd.) EMMA LIRIO-REYES

YAP Secretary of Senate
Secretary General
House of Represenatives

Approved: MAR 10, 2009

(Sgd.) GLORIA MACAPAGAL-ARROYO

President of the Philippines