EN BANC In addition, petitioners contend that RA 9522s treatment
G.R No. 187167, July 16, 2011
PROF. MERLIN M. MAGALLONA, et. Al., Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, et. al., 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
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.
Page 1 of 45
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
Country’s Maritime Zones and Continental Shelf
Under UNCLOS III, not to Delineate Philippine
Territory
Petitioners submit that RA 9522 dismembers a large
portion of the national territory21 because it discards the
pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties,
successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition
trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the
territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris technical
description, Philippine sovereignty over territorial waters
extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in
the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from
the baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that
UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct
of States in the worlds oceans and submarine areas,
recognizing coastal and archipelagic States graduated
authority over a limited span of waters and submarine
lands along their coasts.
On the other hand, baselines laws such as RA
9522 are enacted by UNCLOS III States parties to mark-
out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve
as geographic starting points to measure the breadth of
the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not
be any clearer:
Article 48. Measurement of the breadth
of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental
shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone
and the continental shelf shall be measured
from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory
mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest
of the international community of the scope of the
maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise
of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and
the right to exploit the living and non-living resources in
the exclusive economic zone (Article 56) and continental
shelf (Article 77).
Even under petitioners theory that the Philippine
territory embraces the islands and all the waters within
the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn
in accordance with RA 9522 because this is the only way
to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the
Treaty of Paris, but from the outermost islands and
drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws
play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under
traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion,
cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting
statutes to comply with the treatys terms to delimit
maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international
law.26
RA 9522s Use of the Framework of Regime of Islands
to Determine the Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent with the
Philippines Claim of Sovereignty Over these Areas
Page 2 of 45
Petitioners next submit that RA 9522s use of UNCLOS
IIIs regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime
zones of the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough
Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of about 15,000 square
nautical miles of territorial waters, prejudicing the
livelihood of subsistence fishermen.28 A comparison of
the configuration of the baselines drawn under RA 3046
and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the
text of RA 9522 and its congressional deliberations, vis--
vis the Philippines obligations under UNCLOS III, belie
this view.
The configure
ation of the baselines drawn under RA 3046 and RA
9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the
location of basepoints and adjust the length of one
baseline (and thus comply with UNCLOS IIIs limitation
on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal
lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the
wind out of petitioners argument branding RA 9522 as a
statutory renunciation of the Philippines claim over the
KIG, assuming that baselines are relevant for this
purpose.
Petitioners assertion of loss of about 15,000 square
nautical miles of territorial waters under RA 9522 is
similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical
miles, as shown in the table below:29
Extent of maritime Extent of
area using RA maritime area
3046, as amended, using RA
taking into account 9522, taking
the Treaty of Paris into account
delimitation (in UNCLOS III
square nautical (in square
miles) nautical
miles)
Internal or
archipelagic 166,858 171,435
waters
Territorial 274,136 32,106
Sea
Exclusive
Economic 382,669
Zone
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.
Page 3 of 45
 This is called contested islands outside our
configuration. We see that our archipelago is defined
by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong
malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic
baselines para lamang masama itong dalawang
circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule
that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA
3046 drew exceeded UNCLOS IIIs limits. The need to
shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became
imperative as discussed by respondents:
[T]he amendment of the baselines law was
necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended
continental shelf in the manner provided by Article
47 of [UNCLOS III]. As defined by R.A. 3046, as
amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from
Middle of 3 Rock Awash to Tongquil Point) is
140.06 nautical miles x x x. This exceeds the
maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that The length of such
baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9
basepoints can be skipped or deleted from the
baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps
existing in 1968, and not established by geodetic
survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to
Palawan were later found to be located either inland
or on water, not on low-water line and drying reefs as
prescribed by Article 47.35
Hence, far from surrendering the Philippines
claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the
Scarborough Shoal as Regime[s] of Islands under the
Republic of the Philippines consistent with Article 12136
of UNCLOS III manifests the Philippine States
responsible observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land,
surrounded by water, which is above water at high tide,
such as portions of the KIG, qualifies under the category
of regime of islands, whose islands generate their own
applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its
failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the
baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of
the territorial sea around the territory of
Sabah, situated in North Borneo, over which
the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis
supplied)
UNCLOS III and RA 9522 not Incompatible with the
Constitutions Delineation of Internal Waters
As their final argument against the validity of RA 9522,
petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea
lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal waters under
Article I of the Constitution39 or as archipelagic waters
under UNCLOS III (Article 49 [1]), the Philippines
exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it
and the submarine areas underneath. UNCLOS III
affirms this:
Article 49. Legal status of archipelagic
waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an
archipelagic State extends to
the waters enclosed by the
archipelagic baselines drawn
in accordance with article 47,
described as archipelagic
waters, regardless of their
depth or distance from the
coast.
2. This sovereignty extends to
the air space over the
archipelagic waters, as well
as to their bed and subsoil,
and the resources contained
therein.
xxxx
4. The regime of archipelagic sea lanes
passage established in this Part shall not in
other respects affect the status of the
archipelagic waters, including the sea lanes,
or the exercise by the archipelagic State of
its sovereignty over such waters and their air
space, bed and subsoil, and the resources
contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the
operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international
navigation, consistent with the international law
principle of freedom of navigation.
Page 4 of 45
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.
Page 5 of 45
G.R. No. 164785, April 29, 2009 The following day, petitioner sought
ELISEO F. SORIANO, reconsideration of the preventive suspension order,
Petitioner, praying that Chairperson Consoliza P. Laguardia and two
- versus - other members of the adjudication board recuse
MA. CONSOLIZA P. LAGUARDIA, et. al., themselves from hearing the case. [6] Two days after,
Respondents. however, petitioner sought to withdraw [7] his motion for
reconsideration, followed by the filing with this Court of
G.R. No. 165636 a petition for certiorari and prohibition, [8] docketed as
ELISEO F. SORIANO, G.R. No. 164785, to nullify the preventive suspension
Petitioner, order thus issued.
- versus -
MOVIE AND TELEVISION REVIEW AND On September 27, 2004, in Adm. Case No. 01-04,
CLASSIFICATION BOARD, et. al., Respondents. the MTRCB issued a decision, disposing as follows:

DECISION WHEREFORE, in view of all the

foregoing, a Decision is hereby rendered,
VELASCO, JR., J.: finding respondent Soriano liable for his
utterances and thereby imposing on him
In these two petitions for certiorari and a penalty of three (3) months suspension
prohibition under Rule 65, petitioner Eliseo F. Soriano from his program, Ang Dating Daan.
seeks to nullify and set aside an order and a decision of
the Movie and Television Review and Classification Co-respondents Joselito Mallari,
Board (MTRCB) in connection with certain utterances he Luzviminda Cruz and UNTV Channel 37
made in his television show, Ang Dating Daan. and its owner, PBC, are hereby
exonerated for lack of evidence.
Facts of the Case
SO ORDERED. [9]
On August 10, 2004, at around 10:00 p.m.,
petitioner, as host of the program Ang Dating Daan, aired Petitioner then filed this petition for certiorari and
on UNTV 37, made the following remarks: prohibition with prayer for injunctive relief, docketed as
Lehitimong anak ng demonyo; G.R. No. 165636.
sinungaling; Gago ka talaga Michael, In a Resolution dated April 4, 2005, the Court
masahol ka pa sa putang babae o di ba. consolidated G.R. No. 164785 with G.R. No. 165636.
Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang In G.R. No. 164785, petitioner raises the
gumagana ang itaas, o di ba! O, masahol following issues:
pa sa putang babae yan. Sabi ng lola ko
masahol pa sa putang babae yan. Sobra THE ORDER OF PREVENTIVE SUSPENSION
ang kasinungalingan ng mga demonyong PROMULGATED BY RESPONDENT
ito. [MTRCB] DATED 16 AUGUST 2004
AGAINST THE TELEVISION PROGRAM
xxx ANG DATING DAAN x x x IS NULL AND VOID
FOR BEING ISSUED WITH GRAVE ABUSE
Two days after, before the MTRCB, separate but OF DISCRETION AMOUNTING TO LACK
almost identical affidavit-complaints were lodged by OR EXCESS OF JURISDICTION
Jessie L. Galapon and seven other private respondents, all
members of the Iglesia ni Cristo (INC), [2] against (A) BY REASON THAT THE [IRR] IS
petitioner in connection with the above broadcast. INVALID INSOFAR AS IT PROVIDES
Respondent Michael M. Sandoval, who felt directly FOR THE ISSUANCE OF PREVENTIVE
alluded to in petitioners remark, was then a minister of SUSPENSION ORDERS;
INC and a regular host of the TV program Ang Tamang (B) BY REASON OF LACK OF DUE
Daan. [3] Forthwith, the MTRCB sent petitioner a notice HEARING IN THE CASE AT BENCH;
of the hearing on August 16, 2004 in relation to the (C) FOR BEING VIOLATIVE OF EQUAL
alleged use of some cuss words in the August 10, 2004 PROTECTION UNDER THE LAW;
episode of Ang Dating Daan. [4] (D) FOR BEING VIOLATIVE OF
FREEDOM OF RELIGION; AND
After a preliminary conference in which (E) FOR BEING VIOLATIVE OF
petitioner appeared, the MTRCB, by Order of August 16, FREEDOM OF SPEECH AND
2004, preventively suspended the showing of Ang Dating EXPRESSION. [10]
Daan program for 20 days, in accordance with Section
3(d) of Presidential Decree No. (PD) 1986, creating the In G.R. No. 165636, petitioner relies on the
MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 following grounds:
Implementing Rules and Regulations (IRR) of PD 1986
and Sec. 7, Rule VII of the MTRCB Rules of Procedure. SECTION 3(C) OF [PD] 1986, IS PATENTLY
[5] The same order also set the case for preliminary UNCONSTITUTIONAL AND ENACTED
investigation. WITHOUT OR IN EXCESS OF
JURISDICTION x x x CONSIDERING THAT:

Page 6 of 45
 I Petitioners contention is untenable.
SECTION 3(C) OF [PD] 1986, AS APPLIED TO
PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF
FREEDOM OF RELIGION, SPEECH, AND
EXPRESSION AS IT PARTAKES OF THE
NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E.
DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT
BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO
PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE
PROCESS OF LAW AND EQUAL
PROTECTION UNDER THE LAW;
CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E.,
DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004,
ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT
BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF
AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING
IN AN UNDUE DELEGATION OF
LEGISLATIVE POWER BY REASON THAT
IT DOES NOT PROVIDE FOR THE
PENALTIES FOR VIOLATIONS OF ITS
PROVISIONS. CONSEQUENTLY, THE [IRR],
RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED
IN THE CASE AT BENCH [11]
G.R. No. 164785
We shall first dispose of the issues in G.R. No.
164785, regarding the assailed order of preventive
suspension, although its implementability had already
been overtaken and veritably been rendered moot by the
equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the
preventive suspension imposed against him and the
relevant IRR provision authorizing it are invalid
inasmuch as PD 1986 does not expressly authorize the
MTRCB to issue preventive suspension.
Administrative agencies have powers and
functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of
the five, as may be conferred by the Constitution or by
statute. [12] They have in fine only such powers or
authority as are granted or delegated, expressly or
impliedly, by law. [13] And in determining whether an
agency has certain powers, the inquiry should be from the
law itself. But once ascertained as existing, the authority
given should be liberally construed. [14]
A perusal of the MTRCBs basic mandate under
PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order
of preventive suspension. And this authority stems
naturally from, and is necessary for the exercise of, its
power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the
following:
Section 3. Powers and Functions.The
BOARD shall have the following
functions, powers and duties: x x x x
c) To approve or disapprove, delete
objectionable portions from and/or prohibit the x
x x production, x x x exhibition and/or television
broadcast of the motion pictures, television
programs and publicity materials subject of the
preceding paragraph, which, in the judgment of
the board applying contemporary Filipino
cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with
a dangerous tendency to encourage the
commission of violence or of wrong or crime
such as but not limited to: x x x x
vi) Those which are libelous or defamatory to
the good name and reputation of any person,
whether living or dead;
xxxx
(d) To supervise, regulate, and grant, deny
or cancel, permits for the x x x production,
copying, distribution, sale, lease, exhibition,
and/or television broadcast of all motion
pictures, television programs and publicity
materials, to the end that no such pictures,
programs and materials as are determined by
the BOARD to be objectionable in accordance
with paragraph (c) hereof shall be x x x produced,
copied, reproduced, distributed, sold, leased,
exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as
may be necessary or incidental to the attainment
of the purposes and objectives of this Act x x x.
(Emphasis added.)
Page 7 of 45
 The issuance of a preventive suspension comes
well within the scope of the MTRCBs authority and
functions expressly set forth in PD 1986, more
particularly under its Sec. 3(d), as quoted above, which
empowers the MTRCB to supervise, regulate, and grant,
deny or cancel, permits for the x x x exhibition, and/or
television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such
pictures, programs and materials as are determined by the
BOARD to be objectionable in accordance with
paragraph (c) hereof shall be x x x exhibited and/or
broadcast by television.
Surely, the power to issue preventive suspension
forms part of the MTRCBs express regulatory and
supervisory statutory mandate and its investigatory and
disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to
regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not
a penalty by itself, being merely a preliminary step in an
administrative investigation. [15] And the power to
discipline and impose penalties, if granted, carries with it
the power to investigate administrative complaints and,
during such investigation, to preventively suspend the
person subject of the complaint. [16]
To reiterate, preventive suspension authority of
the MTRCB springs from its powers conferred under PD
1986. The MTRCB did not, as petitioner insinuates,
empower itself to impose preventive suspension through
the medium of the IRR of PD 1986. It is true that the
matter of imposing preventive suspension is embodied
only in the IRR of PD 1986. Sec. 3, Chapter XIII of the
IRR provides:
Sec. 3. PREVENTION SUSPENSION
ORDER.Any time during the pendency of the
case, and in order to prevent or stop further
violations or for the interest and welfare of the
public, the Chairman of the Board may issue a
Preventive Suspension Order mandating the
preventive x x x suspension of the permit/permits
involved, and/or closure of the x x x television
network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have
a life of not more than twenty (20) days from the
date of issuance.
But the mere absence of a provision on preventive
suspension in PD 1986, without more, would not work to
deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise
television programs to obviate the exhibition or broadcast
of, among others, indecent or immoral materials and to
impose sanctions for violations and, corollarily, to
prevent further violations as it investigates. Contrary to
petitioners assertion, the aforequoted Sec. 3 of the IRR
neither amended PD 1986 nor extended the effect of the
law. Neither did the MTRCB, by imposing the assailed
preventive suspension, outrun its authority under the law.
Far from it. The preventive suspension was actually done
in furtherance of the law, imposed pursuant, to repeat, to
the MTRCBs duty of regulating or supervising television
programs, pending a determination of whether or not
there has actually been a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a
power which PD 1986 bestowed, albeit impliedly, on
MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to
the present case, sufficient to authorize the MTRCBs
assailed action. Petitioners restrictive reading of PD 1986,
limiting the MTRCB to functions within the literal
confines of the law, would give the agency little leeway
to operate, stifling and rendering it inutile, when Sec. 3(k)
of PD 1986 clearly intends to grant the MTRCB a wide
room for flexibility in its operation. Sec. 3(k), we
reiterate, provides, To exercise such powers and functions
as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. Indeed, the
power to impose preventive suspension is one of the
implied powers of MTRCB. As distinguished from
express powers, implied powers are those that can be
inferred or are implicit in the wordings or conferred by
necessary or fair implication of the enabling act. [17] As
we held in Angara v. Electoral Commission, when a
general grant of power is conferred or a duty enjoined,
every particular power necessary for the exercise of one
or the performance of the other is also conferred by
necessary implication. [18] Clearly, the power to impose
preventive suspension pending investigation is one of the
implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that
the aforequoted IRR provision on preventive suspension
is applicable only to motion pictures and publicity
materials. The scope of the MTRCBs authority extends
beyond motion pictures. What the acronym MTRCB
stands for would suggest as much. And while the law
makes specific reference to the closure of a television
network, the suspension of a television program is a far
less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again,
the MTRCB would regretfully be rendered ineffective
should it be subject to the restrictions petitioner
envisages.
Just as untenable is petitioners argument on the
nullity of the preventive suspension order on the ground
of lack of hearing. As it were, the MTRCB handed out the
assailed order after petitioner, in response to a written
notice, appeared before that Board for a hearing on private
respondents complaint. No less than petitioner admitted
that the order was issued after the adjournment of the
hearing, [19] proving that he had already appeared before
the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD
1986, preventive suspension shall issue [a]ny time during
the pendency of the case. In this particular case, it was
done after MTRCB duly apprised petitioner of his having
possibly violated PD 1986 [20] and of administrative
complaints that had been filed against him for such
violation. [21]
At any event, that preventive suspension can
validly be meted out even without a hearing. [22]
Petitioner next faults the MTRCB for denying
him his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he was
unable to answer the criticisms coming from the INC
ministers.
Page 8 of 45
 Petitioners position does not persuade. The equal
protection clause demands that all persons subject to
legislation should be treated alike, under like
circumstances and conditions both in the privileges
conferred and liabilities imposed. [23] It guards against
undue favor and individual privilege as well as hostile
discrimination. [24] Surely, petitioner cannot, under the
premises, place himself in the same shoes as the INC
ministers, who, for one, are not facing administrative
complaints before the MTRCB. For another, he offers no
proof that the said ministers, in their TV programs, use
language similar to that which he used in his own,
necessitating the MTRCBs disciplinary action. If the
immediate result of the preventive suspension order is that
petitioner remains temporarily gagged and is unable to
answer his critics, this does not become a deprivation of
the equal protection guarantee. The Court need not
belabor the fact that the circumstances of petitioner, as
host of Ang Dating Daan, on one hand, and the INC
ministers, as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different to
even consider whether or not there is a prima facie
indication of oppressive inequality.
Petitioner next injects the notion of religious
freedom, submitting that what he uttered was religious
speech, adding that words like putang babae were said in
exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how
petitioners utterances in question can come within the
pale of Sec. 5, Article III of the 1987 Constitution on
religious freedom. The section reads as follows:
No law shall be made respecting the
establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.
There is nothing in petitioners statements subject
of the complaints expressing any particular religious
belief, nothing furthering his avowed evangelical mission.
The fact that he came out with his statements in a televised
bible exposition program does not automatically accord
them the character of a religious discourse. Plain and
simple insults directed at another person cannot be
elevated to the status of religious speech. Even petitioners
attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by
any religious conviction.
His claim, assuming its veracity, that some INC
ministers distorted his statements respecting amounts Ang
Dating Daan owed to a TV station does not convert the
foul language used in retaliation as religious speech. We
cannot accept that petitioner made his statements in
defense of his reputation and religion, as they constitute
no intelligible defense or refutation of the alleged lies
being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of
name-calling and foul-language discourse. Petitioner
could have chosen to contradict and disprove his
detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would
have the Court nullify the 20-day preventive suspension order,
being, as insisted, an unconstitutional abridgement of the
freedom of speech and expression and an impermissible prior
restraint. The main issue tendered respecting the adverted
violation and the arguments holding such issue dovetails with
those challenging the three-month suspension imposed under
the assailed September 27, 2004 MTRCB decision subject of
review under G.R. No. 165636. Both overlapping issues and
arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision
suspending him from hosting Ang Dating Daan for three
months on the main ground that the decision violates,
apart from his religious freedom, his freedom of speech
and expression guaranteed under Sec. 4, Art. III of the
Constitution, which reads:
No law shall be passed abridging the
freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble
and petition the government for redress of
grievance.
He would also have the Court declare PD 1986,
its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.
We are not persuaded as shall be explained
shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and
expression.
It is settled that expressions by means of
newspapers, radio, television, and motion pictures come
within the broad protection of the free speech and
expression clause. [25] Each method though, because of
its dissimilar presence in the lives of people and
accessibility to children, tends to present its own
problems in the area of free speech protection, with
broadcast media, of all forms of communication, enjoying
a lesser degree of protection. [26] Just as settled is the rule
that restrictions, be it in the form of prior restraint, e.g.,
judicial injunction against publication or threat of
cancellation of license/franchise, or subsequent liability,
whether in libel and damage suits, prosecution for
sedition, or contempt proceedings, are anathema to the
freedom of expression. Prior restraint means official
government restrictions on the press or other forms of
expression in advance of actual publication or
dissemination. [27] The freedom of expression, as with
the other freedoms encased in the Bill of Rights, is,
however, not absolute. It may be regulated to some extent
to serve important public interests, some forms of speech
not being protected. As has been held, the limits of the
freedom of expression are reached when the expression
touches upon matters of essentially private concern. [28]
In the oft-quoted expression of Justice Holmes, the
constitutional guarantee obviously was not intended to
give immunity for every possible use of language. [29]
From Lucas v. Royo comes this line: [T]he freedom to
express ones sentiments and belief does not grant one the
license to vilify in public the honor and integrity of
another. Any sentiments must be expressed within the
proper forum and with proper regard for the rights of
others. [30]
Page 9 of 45
 Indeed, as noted in Chaplinsky v. State of New
Hampshire, [31] there are certain well-defined and
narrowly limited classes of speech that are harmful, the
prevention and punishment of which has never been
thought to raise any Constitutional problems. In net effect,
some forms of speech are not protected by the
Constitution, meaning that restrictions on unprotected
speech may be decreed without running afoul of the
freedom of speech clause. [32] A speech would fall under
the unprotected type if the utterances involved are no
essential part of any exposition of ideas, and are of such
slight social value as a step of truth that any benefit that
may be derived from them is clearly outweighed by the
social interest in order and morality. [33] Being of little
or no value, there is, in dealing with or regulating them,
no imperative call for the application of the clear and
present danger rule or the balancing-of-interest test, they
being essentially modes of weighing competing values,
[34] or, with like effect, determining which of the clashing
interests should be advanced.
Petitioner asserts that his utterance in question is
a protected form of speech.
The Court rules otherwise. It has been established
in this jurisdiction that unprotected speech or low-value
expression refers to libelous statements, obscenity or
pornography, false or misleading advertisement, insulting
or fighting words, i.e., those which by their very utterance
inflict injury or tend to incite an immediate breach of
peace and expression endangering national security.
The Court finds that petitioners statement can be
treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court expressed
difficulty in formulating a definition of obscenity that
would apply to all cases, but nonetheless stated the
ensuing observations on the matter:
There is no perfect definition of obscenity but
the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the
average person, applying contemporary standards
would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude
that the trier of facts has the unbridled discretion in
determining what is patently offensive. x x x What
remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case
to case basis and on the judges sound discretion. [35]
would come within the pale of the term obscenity
should it appeal to the prurient interest of an average
listener applying contemporary standards.
A cursory examination of the utterances complained of
and the circumstances of the case reveal that to an average
adult, the utterances Gago ka talaga x x x, masahol ka pa
sa putang babae x x x. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba! may not constitute obscene but merely
indecent utterances. They can be viewed as figures of
speech or merely a play on words. In the context they
were used, they may not appeal to the prurient interests of
an adult. The problem with the challenged statements is
that they were uttered in a TV program that is rated G or
for general viewership, and in a time slot that would likely
reach even the eyes and ears of children.
While adults may have understood that the terms
thus used were not to be taken literally, children could
hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as
that of petitioner in a television broadcast could corrupt
impressionable young minds. The term putang babae
means a female prostitute, a term wholly inappropriate for
children, who could look it up in a dictionary and just get
the literal meaning, missing the context within which it
was used. Petitioner further used the terms, ang
gumagana lang doon yung ibaba, making reference to the
female sexual organ and how a female prostitute uses it in
her trade, then stating that Sandoval was worse than that
by using his mouth in a similar manner. Children could be
motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context.
They may be inquisitive as to why Sandoval is different
from a female prostitute and the reasons for the
dissimilarity. And upon learning the meanings of the
words used, young minds, without the guidance of an
adult, may, from their end, view this kind of indecent
speech as obscene, if they take these words literally and
use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the
opportunity to hear petitioners words, when speaking of
the average person in the test for obscenity, we are
speaking of the average child, not the average adult. The
average child may not have the adults grasp of figures of
speech, and may lack the understanding that language
may be colorful, and words may convey more than the
literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as
such. In this sense, we find petitioners utterances obscene
and not entitled to protection under the umbrella of
freedom of speech.
Even if we concede that petitioners remarks are
not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the
constitutional protection of free speech. Said statements
were made in a medium easily accessible to children.
With respect to the young minds, said utterances are to be
treated as unprotected speech.
No doubt what petitioner said constitutes
indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive
utterances conveyed in different mediums has emerged,
this case is veritably one of first impression, it being the
first time that indecent speech communicated via
television and the applicable norm for its regulation are,
in this jurisdiction, made the focal point. Federal
Communications Commission (FCC) v. Pacifica
Foundation, [37] a 1978 American landmark case cited in
Eastern Broadcasting Corporation v. Dans, Jr. [38] and
Chavez v. Gonzales, [39] is a rich source of persuasive
lessons. Foremost of these relates to indecent speech
without prurient appeal component coming under the
category of protected speech depending on the context
within which it was made, irresistibly suggesting that,
within a particular context, such indecent speech may
validly be categorized as unprotected, ergo, susceptible to
restriction.
Page 10 of 45
 In FCC, seven of what were considered filthy
words [40] earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station
owned by Pacifica Foundation. Upon the complaint of a
man who heard the pre-recorded monologue while
driving with his son, FCC declared the language used as
patently offensive and indecent under a prohibiting law,
though not necessarily obscene. FCC added, however,
that its declaratory order was issued in a special factual
context, referring, in gist, to an afternoon radio broadcast
when children were undoubtedly in the audience. Acting
on the question of whether the FCC could regulate the
subject utterance, the US Supreme Court ruled in the
affirmative, owing to two special features of the broadcast
medium, to wit: (1) radio is a pervasive medium and (2)
broadcasting is uniquely accessible to children. The US
Court, however, hastened to add that the monologue
would be protected speech in other contexts, albeit it did
not expound and identify a compelling state interest in
putting FCCs content-based regulatory action under
scrutiny.
The Court in Chavez [41] elucidated on the
distinction between regulation or restriction of protected
speech that is content-based and that which is content-
neutral. A content-based restraint is aimed at the contents
or idea of the expression, whereas a content-neutral
restraint intends to regulate the time, place, and manner of
the expression under well-defined standards tailored to
serve a compelling state interest, without restraint on the
message of the expression. Courts subject content-based
restraint to strict scrutiny.
With the view we take of the case, the suspension
MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this
disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made
via television, a pervasive medium that, to borrow from
Gonzales v. Kalaw Katigbak, [42] easily reaches every
home where there is a set [and where] [c]hildren will
likely be among the avid viewers of the programs therein
shown; second, the broadcast was aired at the time of the
day when there was a reasonable risk that children might
be in the audience; and third, petitioner uttered his speech
on a G or for general patronage rated program. Under Sec.
2(A) of Chapter IV of the IRR of the MTRCB, a show for
general patronage is [s]uitable for all ages, meaning that
the material for television x x x in the judgment of the
BOARD, does not contain anything unsuitable for
children and minors, and may be viewed without adult
guidance or supervision. The words petitioner used were,
by any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in
petitioners utterances on a general-patronage rated TV
program, it may be readily proscribed as unprotected
speech.
A view has been advanced that unprotected
speech refers only to pornography, [43] false or
misleading advertisement, [44] advocacy of imminent
lawless action, and expression endangering national
security. But this list is not, as some members of the Court
would submit, exclusive or carved in stone. Without
going into specifics, it may be stated without fear of
contradiction that US decisional law goes beyond the
aforesaid general exceptions. As the Court has been
impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet
another exception, another instance of unprotected
speech, created by the necessity of protecting the welfare
of our children. As unprotected speech, petitioners
utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has
remained undisturbed since 1978, petitioner asserts that
his utterances must present a clear and present danger of
bringing about a substantive evil the State has a right and
duty to prevent and such danger must be grave and
imminent. [45]
Petitioners invocation of the clear and present
danger doctrine, arguably the most permissive of speech
tests, would not avail him any relief, for the application of
said test is uncalled for under the premises. The doctrine,
first formulated by Justice Holmes, accords protection for
utterances so that the printed or spoken words may not be
subject to prior restraint or subsequent punishment unless
its expression creates a clear and present danger of
bringing about a substantial evil which the government
has the power to prohibit. [46] Under the doctrine,
freedom of speech and of press is susceptible of restriction
when and only when necessary to prevent grave and
immediate danger to interests which the government may
lawfully protect. As it were, said doctrine evolved in the
context of prosecutions for rebellion and other crimes
involving the overthrow of government. [47] It was
originally designed to determine the latitude which should
be given to speech that espouses anti-government action,
or to have serious and substantial deleterious
consequences on the security and public order of the
community. [48] The clear and present danger rule has
been applied to this jurisdiction. [49] As a standard of
limitation on free speech and press, however, the clear and
present danger test is not a magic incantation that wipes
out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free
speech and which compels a court to release a defendant
from liability the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster. [50] As we
observed in Eastern Broadcasting Corporation, the clear
and present danger test does not lend itself to a simplistic
and all embracing interpretation applicable to all
utterances in all forums. [51]
To be sure, the clear and present danger doctrine
is not the only test which has been applied by the courts.
Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which
do not clearly undermine national security. Since not all
evils can be measured in terms of proximity and degree
the Court, however, in several casesAyer Productions v.
Capulong [52] and Gonzales v. COMELEC, [53] applied
the balancing of interests test. Former Chief Justice Fred
Ruiz Castro, in Gonzales v. COMELEC, elucidated in his
Separate Opinion that where the legislation under
constitutional attack interferes with the freedom of speech
and assembly in a more generalized way and where the
effect of the speech and assembly in terms of the
probability of realization of a specific danger is not
susceptible even of impressionistic calculation, [54] then
the balancing of interests test can be applied.
Page 11 of 45
The Court explained also in Gonzales v. COMELEC the
balancing of interests test:
When particular conduct is regulated in
the interest of public order, and the regulation
results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests
demands the greater protection under the
particular circumstances presented. x x x We
must, therefore, undertake the delicate and
difficult task x x x to weigh the circumstances and
to appraise the substantiality of the reasons
advanced in support of the regulation of the free
enjoyment of rights x x x.
In enunciating standard premised on a
judicial balancing of the conflicting social values
and individual interests competing for
ascendancy in legislation which restricts
expression, the court in Douds laid the basis for
what has been called the balancing-of-interests
test which has found application in more recent
decisions of the U.S. Supreme Court. Briefly
stated, the balancing test requires a court to take
conscious and detailed consideration of the
interplay of interests observable in a given
situation or type of situation. x x x x
Although the urgency of the public
interest sought to be secured by Congressional
power restricting the individuals freedom, and the
social importance and value of the freedom so
restricted, are to be judged in the concrete, not on
the basis of abstractions, a wide range of factors
are necessarily relevant in ascertaining the point
or line of equilibrium. Among these are (a) the
social value and importance of the specific aspect
of the particular freedom restricted by the
legislation; (b) the specific thrust of the
restriction, i.e., whether the restriction is direct or
indirect, whether or not the persons affected are
few; (c) the value and importance of the public
interest sought to be secured by the legislationthe
reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether
the specific restriction decreed by Congress is
reasonably appropriate and necessary for the
protection of such public interest; and (e) whether
the necessary safeguarding of the public interest
involved may be achieved by some other measure
less restrictive of the protected freedom. [55]
This balancing of interest test, to borrow from
Professor Kauper, [56] rests on the theory that it is the
courts function in a case before it when it finds public
interests served by legislation, on the one hand, and the
free expression clause affected by it, on the other, to
balance one against the other and arrive at a judgment
where the greater weight shall be placed. If, on balance, it
appears that the public interest served by restrictive
legislation is of such nature that it outweighs the
abridgment of freedom, then the court will find the
legislation valid. In short, the balance-of-interests theory
rests on the basis that constitutional freedoms are not
absolute, not even those stated in the free speech and
expression clause, and that they may be abridged to some
extent to serve appropriate and important interests. [57]
To the mind of the Court, the balancing of interest
doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and
obscene language and a three (3)-month suspension was
slapped on him for breach of MTRCB rules. In this
setting, the assertion by petitioner of his enjoyment of his
freedom of speech is ranged against the duty of the
government to protect and promote the development and
welfare of the youth.
After a careful examination of the factual milieu
and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the governments
interest to protect and promote the interests and welfare
of the children adequately buttresses the reasonable
curtailment and valid restraint on petitioners prayer to
continue as program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital
rights granted to citizens of a State is the freedom of
speech or expression, for without the enjoyment of such
right, a free, stable, effective, and progressive democratic
state would be difficult to attain. Arrayed against the
freedom of speech is the right of the youth to their moral,
spiritual, intellectual, and social being which the State is
constitutionally tasked to promote and protect. Moreover,
the State is also mandated to recognize and support the
vital role of the youth in nation building as laid down in
Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the
sacred obligation and responsibility on the State to
provide protection to the youth against illegal or improper
activities which may prejudice their general well-being.
The Article on youth, approved on second reading by the
Constitutional Commission, explained that the State shall
extend social protection to minors against all forms of
neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of
discrimination. [58]
Indisputably, the State has a compelling interest
in extending social protection to minors against all forms
of neglect, exploitation, and immorality which may
pollute innocent minds. It has a compelling interest in
helping parents, through regulatory mechanisms, protect
their childrens minds from exposure to undesirable
materials and corrupting experiences. The Constitution,
no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better
prepare them fulfill their role in the field of nation-
building. [59] In the same way, the State is mandated to
support parents in the rearing of the youth for civic
efficiency and the development of moral character. [60]
Petitioners offensive and obscene language
uttered in a television broadcast, without doubt, was
easily accessible to the children. His statements could
have exposed children to a language that is unacceptable
in everyday use. As such, the welfare of children and the
States mandate to protect and care for them, as parens
patriae, [61] constitute a substantial and compelling
government interest in regulating petitioners utterances in
TV broadcast as provided in PD 1986.
Page 12 of 45
 FCC explains the duty of the government to act
as parens patriae to protect the children who, because of
age or interest capacity, are susceptible of being corrupted
or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to
children, even those too young to read. Although
Cohens written message, [Fuck the Draft], might
have been incomprehensible to a first grader,
Pacificas broadcast could have enlarged a childs
vocabulary in an instant. Other forms of offensive
expression may be withheld from the young
without restricting the expression at its source.
Bookstores and motion picture theaters, for
example, may be prohibited from making
indecent material available to children. We held
in Ginsberg v. New York that the governments
interest in the well-being of its youth and in
supporting parents claim to authority in their own
household justified the regulation of otherwise
protected expression. The ease with which
children may obtain access to broadcast material,
coupled with the concerns recognized in
Ginsberg, amply justify special treatment of
indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise
stressed the duty of the State to attend to the welfare of
the young:
x x x It is the consensus of this Court that
where television is concerned, a less liberal
approach calls for observance. This is so because
unlike motion pictures where the patrons have to
pay their way, television reaches every home
where there is a set. Children then will likely will
be among the avid viewers of the programs
therein shown. As was observed by Circuit Court
of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual
fantasies of the adult population. It cannot be
denied though that the State as parens patriae is
called upon to manifest an attitude of caring for
the welfare of the young. [62]
The compelling need to protect the young impels
us to sustain the regulatory action MTRCB took in the
narrow confines of the case. To reiterate, FCC justified
the restraint on the TV broadcast grounded on the
following considerations: (1) the use of television with its
unique accessibility to children, as a medium of broadcast
of a patently offensive speech; (2) the time of broadcast;
and (3) the G rating of the Ang Dating Daan program.
And in agreeing with MTRCB, the court takes stock of
and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to
emphasize the narrowness of our holding. This
case does not involve a two-way radio
conversation between a cab driver and a
dispatcher, or a telecast of an Elizabethan
comedy. We have not decided that an occasional
expletive in either setting would justify any
sanction. x x x
The [FFCs] decision rested entirely on a
nuisance rationale under which context is all
important. The concept requires consideration of
a host of variables. The time of day was
emphasized by the [FFC]. The content of the
program in which the language is used will affect
the composition of the audience x x x. As Mr.
Justice Sutherland wrote a nuisance may be
merely a right thing in the wrong place, like a pig
in the parlor instead of the barnyard. We simply
hold that when the [FCC] finds that a pig has
entered the parlor, the exercise of its regulatory
power does not depend on proof that the pig is
obscene. (Citation omitted.)
There can be no quibbling that the remarks in
question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of
speech that PD 1986 proscribes necessitating the exercise
by MTRCB of statutory disciplinary powers. It is the kind
of speech that the State has the inherent prerogative, nay
duty, to regulate and prevent should such action served
and further compelling state interests. One who utters
indecent, insulting, or offensive words on television when
unsuspecting children are in the audience is, in the graphic
language of FCC, a pig in the parlor. Public interest would
be served if the pig is reasonably restrained or even
removed from the parlor.
Ergo, petitioners offensive and indecent
language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month
suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit
indirectly.
After a review of the facts, the Court finds that
what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and
obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on
speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The
exceptions to prior restraint are movies, television, and
radio broadcast censorship in view of its access to
numerous people, including the young who must be
insulated from the prejudicial effects of unprotected
speech. PD 1986 was passed creating the Board of
Review for Motion Pictures and Television (now
MTRCB) and which requires prior permit or license
before showing a motion picture or broadcasting a TV
program. The Board can classify movies and television
programs and can cancel permits for exhibition of films
or television broadcast.
The power of MTRCB to regulate and even
impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo
v. Court of Appeals. Speaking through Chief Justice
Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that
its religious program is per se beyond review by
the respondent Board. Its public broadcast on TV
of its religious program brings it out of the bosom
of internal belief. Television is a medium that
reaches even the eyes and ears of children.
Page 13 of 45
 The Court iterates the rule that the exercise of
religious freedom can be regulated by the State
when it will bring about the clear and present
danger of some substantive evil which the State
is duty bound to prevent, i.e., serious detriment to
the more overriding interest of public health,
public morals, or public welfare. x x x x x x x
While the thesis has a lot to commend
itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an
administrative body quasi-judicial power to
preview and classify TV programs and enforce its
decision subject to review by our courts. As far
back as 1921, we upheld this setup in Sotto vs.
Ruiz, viz:
The use of the mails by private
persons is in the nature of a privilege which
can be regulated in order to avoid its abuse.
Persons possess no absolute right to put into
the mail anything they please, regardless of
its character. [63]
Under the decree a movie classification
board is made the arbiter of what movies and
television programs or parts of either are fit for
public consumption. It decides what movies are
immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic
of the Philippines or its people, and what tend to
incite subversion, insurrection, rebellion or
sedition, or tend to undermine the faith and
confidence of the people in their government
and/or duly constituted authorities, etc.
Moreover, its decisions are executory unless
stopped by a court. [64]
Moreover, in MTRCB v. ABS-CBN Broadcasting
Corporation, [65] it was held that the power of review and
prior approval of MTRCB extends to all television
programs and is valid despite the freedom of speech
guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are
required to get a permit before they air their television
programs. Consequently, their right to enjoy their
freedom of speech is subject to that requirement. As
lucidly explained by Justice Dante O. Tinga, government
regulations through the MTRCB became a necessary evil
with the government taking the role of assigning
bandwidth to individual broadcasters. The stations
explicitly agreed to this regulatory scheme; otherwise,
chaos would result in the television broadcast industry as
competing broadcasters will interfere or co-opt each
others signals. In this scheme, station owners and
broadcasters in effect waived their right to the full
enjoyment of their right to freedom of speech in radio and
television programs and impliedly agreed that said right
may be subject to prior restraintdenial of permit or
subsequent punishment, like suspension or cancellation of
permit, among others.
The three (3) months suspension in this case is
not a prior restraint on the right of petitioner to continue
with the broadcast of Ang Dating Daan as a permit was
already issued to him by MTRCB for such broadcast.
Rather, the suspension is in the form of permissible
administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening
of August 10, 2004 in his television program, Ang Dating
Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free
speech clause. And the imposition is separate and distinct
from the criminal action the Board may take pursuant to
Sec. 3(i) of PD 1986 and the remedies that may be availed
of by the aggrieved private party under the provisions on
libel or tort, if applicable. As FCC teaches, the imposition
of sanctions on broadcasters who indulge in profane or
indecent broadcasting does not constitute forbidden
censorship. Lest it be overlooked, the sanction imposed is
not per se for petitioners exercise of his freedom of speech
via television, but for the indecent contents of his
utterances in a G rated TV program.
More importantly, petitioner is deemed to have
yielded his right to his full enjoyment of his freedom of
speech to regulation under PD 1986 and its IRR as
television station owners, program producers, and hosts
have impliedly accepted the power of MTRCB to regulate
the broadcast industry.
Neither can petitioners virtual inability to speak
in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For
viewed in its proper perspective, the suspension is in the
nature of an intermediate penalty for uttering an
unprotected form of speech. It is definitely a lesser
punishment than the permissible cancellation of
exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the
MTRCB in the enforcement and administration of the law
which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech
made on prime-time G rated TV program; it does not bar
future speech of petitioner in other television programs; it
is a permissible subsequent administrative sanction; it
should not be confused with a prior restraint on speech.
While not on all fours, the Court, in MTRCB, [66]
sustained the power of the MTRCB to penalize a
broadcast company for exhibiting/airing a pre-taped TV
episode without Board authorization in violation of Sec.
7 of PD 1986.
Any simplistic suggestion, however, that the
MTRCB would be crossing the limits of its authority were
it to regulate and even restrain the prime-time television
broadcast of indecent or obscene speech in a G rated
program is not acceptable. As made clear in Eastern
Broadcasting Corporation, the freedom of television and
radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media. The
MTRCB, as a regulatory agency, must have the
wherewithal to enforce its mandate, which would not be
effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some
form of regulation, considering the ease with which they
can be accessed, and violations of the regulations must be
met with appropriate and proportional disciplinary action.
The suspension of a violating television program would
be a sufficient punishment and serve as a deterrent for
those responsible. The prevention of the broadcast of
petitioners television program is justified, and does not
constitute prohibited prior restraint. It behooves the Court
to respond to the needs of the changing times, and craft
jurisprudence to reflect these times.
Page 14 of 45
 Petitioner, in questioning the three-month
suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to
him, infringes also upon his freedom of religion. The
Court has earlier adequately explained why petitioners
undue reliance on the religious freedom cannot lend
justification, let alone an exempting dimension to his
licentious utterances in his program. The Court sees no
need to address anew the repetitive arguments on
religious freedom. As earlier discussed in the disposition
of the petition in G.R. No. 164785, what was uttered was
in no way a religious speech. Parenthetically, petitioners
attempt to characterize his speech as a legitimate defense
of his religion fails miserably. He tries to place his words
in perspective, arguing evidently as an afterthought that
this was his method of refuting the alleged distortion of
his statements by the INC hosts of Ang Tamang Daan.
But on the night he uttered them in his television program,
the word simply came out as profane language, without
any warning or guidance for undiscerning ears.
As to petitioners other argument about having
been denied due process and equal protection of the law,
suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further
delve into the fact that petitioner was afforded due process
when he attended the hearing of the MTRCB, and that he
was unable to demonstrate that he was unjustly
discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been
undue delegation of legislative power, as PD 1986 does
not provide for the range of imposable penalties that may
be applied with respect to violations of the provisions of
the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter
of undue delegation of legislative power in the following
wise:
It is a fundamental principle flowing
from the doctrine of separation of powers that
Congress may not delegate its legislative power
to the two other branches of the government,
subject to the exception that local governments
may over local affairs participate in its exercise.
What cannot be delegated is the authority under
the Constitution to make laws and to alter and
repeal them; the test is the completeness of the
statute in all its term and provisions when it
leaves the hands of the legislature. To determine
whether or not there is an undue delegation of
legislative power, the inquiry must be directed to
the scope and definiteness of the measure
enacted. The legislature does not abdicate its
functions when it describes what job must be
done, who is to do it, and what is the scope of his
authority. For a complex economy, that may
indeed be the only way in which the legislative
process can go forward. A distinction has
rightfully been made between delegation of
power to make laws which necessarily involves a
discretion as to what it shall be, which
constitutionally may not be done, and delegation
of authority or discretion as to its execution to be
exercised under and in pursuance of the law, to
which no valid objection can be made. The
Constitution is thus not to be regarded as denying
the legislature the necessary resources of
flexibility and practicability.
To avoid the taint of unlawful delegation,
there must be a standard, which implies at the
very least that the legislature itself determines
matters of principle and lays down fundamental
policy. Otherwise, the charge of complete
abdication may be hard to repel. A standard thus
defines legislative policy, marks its limits, maps
out its boundaries and specifies the public agency
to apply it. It indicates the circumstances under
which the legislative command is to be effected.
It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or
administrative office designated may in
pursuance of the above guidelines promulgate
supplemental rules and regulations. [67]
Based on the foregoing pronouncements and
analyzing the law in question, petitioners protestation
about undue delegation of legislative power for the sole
reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis
is that MTRCB, in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for violation of the
provisions of the decree, went beyond the terms of the
law.
Petitioners posture is flawed by the erroneous
assumptions holding it together, the first assumption
being that PD 1986 does not prescribe the imposition of,
or authorize the MTRCB to impose, penalties for
violators of PD 1986. As earlier indicated, however, the
MTRCB, by express and direct conferment of power and
functions, is charged with supervising and regulating,
granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures,
television programs, and publicity materials to the end
that no such objectionable pictures, programs, and
materials shall be exhibited and/or broadcast by
television. Complementing this provision is Sec. 3(k) of
the decree authorizing the MTRCB to exercise such
powers and functions as may be necessary or incidental to
the attainment of the purpose and objectives of [the law].
As earlier explained, the investiture of supervisory,
regulatory, and disciplinary power would surely be a
meaningless grant if it did not carry with it the power to
penalize the supervised or the regulated as may be
proportionate to the offense committed, charged, and
proved. As the Court said in Chavez v. National Housing
Authority:
x x x [W]hen a general grant of power is
conferred or duty enjoined, every particular
power necessary for the exercise of the one or the
performance of the other is also conferred. x x x
[W]hen the statute does not specify the particular
method to be followed or used by a government
agency in the exercise of the power vested in it by
law, said agency has the authority to adopt any
reasonable method to carry out its function. [68]
Page 15 of 45
Given the foregoing perspective, it stands to reason that
the power of the MTRCB to regulate and supervise the
exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for
violation of the law sought to be enforced. And would it
not be logical too to say that the power to deny or cancel
a permit for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in
accordance with Sec. 3(a) which, for reference, provides
that agency with the power [to] promulgate such rules and
regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its
purposes and objectives x x x. And Chapter XIII, Sec. 1
of the IRR providing:
Section 1. VIOLATIONS AND
ADMINISTRATIVE SANCTIONS.Without
prejudice to the immediate filing of the appropriate
criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any violation
of PD 1986 and its Implementing Rules and
Regulations governing motion pictures, television
programs, and related promotional materials shall
be penalized with suspension or cancellation of
permits and/or licenses issued by the Board and/or
with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing
Table of Administrative Penalties attached without
prejudice to the power of the Board to amend it when
the need arises. In the meantime the existing revised
Table of Administrative Penalties shall be enforced.
(Emphasis added.)
This is, in the final analysis, no more than a
measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what
petitioner implies, the IRR does not expand the mandate
of the MTRCB under the law or partake of the nature of
an unauthorized administrative legislation. The MTRCB
cannot shirk its responsibility to regulate the public
airwaves and employ such means as it can as a guardian
of the public.
In Sec. 3(c), one can already find the permissible
actions of the MTRCB, along with the standards to be
applied to determine whether there have been statutory
breaches. The MTRCB may evaluate motion pictures,
television programs, and publicity materials applying
contemporary Filipino cultural values as standard, and,
from there, determine whether these audio and video
materials are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] x x x and
apply the sanctions it deems proper. The lawmaking body
cannot possibly provide for all the details in the
enforcement of a particular statute. [69] The grant of the
rule-making power to administrative agencies is a
relaxation of the principle of separation of powers and is
an exception to the non-delegation of legislative powers.
[70] Administrative regulations or subordinate legislation
calculated to promote the public interest are necessary
because of the growing complexity of modern life, the
multiplication of the subjects of governmental
regulations, and the increased difficulty of administering
the law. [71] Allowing the MTRCB some reasonable
elbow-room in its operations and, in the exercise of its
statutory disciplinary functions, according it ample
latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating
circumstances, as the case may be, would be consistent
with its mandate to effectively and efficiently regulate the
movie and television industry.
But even as we uphold the power of the MTRCB
to review and impose sanctions for violations of PD 1986,
its decision to suspend petitioner must be modified, for
nowhere in that issuance, particularly the power-defining
Sec. 3 nor in the MTRCB Schedule of Administrative
Penalties effective January 1, 1999 is the Board
empowered to suspend the program host or even to
prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the
broadcast of such television programs or cancel permits
for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction.
The MTRCB cannot extend its exercise of regulation
beyond what the law provides. Only persons, offenses,
and penalties clearly falling clearly within the letter and
spirit of PD 1986 will be considered to be within the
decrees penal or disciplinary operation. And when it
exists, the reasonable doubt must be resolved in favor of
the person charged with violating the statute and for
whom the penalty is sought. Thus, the MTRCBs decision
in Administrative Case No. 01-04 dated September 27,
2004 and the subsequent order issued pursuant to said
decision must be modified. The suspension should cover
only the television program on which petitioner appeared
and uttered the offensive and obscene language, which
sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is
an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioners flawed belief that
he may simply utter gutter profanity on television without
adverse consequences, under the guise of free speech,
does not lend itself to acceptance in this jurisdiction.
We repeat: freedoms of speech and expression are
not absolute freedoms. To say any act that restrains
speech should be greeted with furrowed brows is not to
say that any act that restrains or regulates speech or
expression is per se invalid. This only recognizes the
importance of freedoms of speech and expression, and
indicates the necessity to carefully scrutinize acts that
may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in
Adm. Case No. 01-04 dated September 27, 2004 is hereby
AFFIRMED with the MODIFICATION of limiting the
suspension to the program Ang Dating Daan. As thus
modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a
Decision is hereby rendered, imposing a penalty of
THREE (3) MONTHS SUSPENSION on the television
program, Ang Dating Daan, subject of the instant
petition.
Co-respondents Joselito Mallari, Luzviminda
Cruz, and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
Costs against petitioner. SO ORDERED.
Page 16 of 45
LAWYERS LEAGUE V AQUINO G.R. No. 73748 - May * The Court was then composed of Teehankee, C.J. and
22, 1986 Abad Santos., Melencio-Herrera, Plana, Escolin,
LAWYERS LEAGUE FOR A BETTER PHILIPPINES Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ.
vs. AQUINO
(G.R. No. 73748 - May 22, 1986) DIGEST
------------------------
(There is no "Full-Text" of this case. This is a Minute FACTS:
Resolution made by the SC.)
On February 25, 1986, President Corazon Aquino issued
Minute Resolutions Proclamation No. 1 announcing that she and Vice
President Laurel were taking power.
EN BANC On March 25, 1986, proclamation No.3 was issued
providing the basis of the Aquino government assumption
[G.R. No. 73748, May 22, 1986] of power by stating that the "new government was
installed through a direct exercise of the power of the
LAWYERS LEAGUE FOR A BETTER PHILIPPINES Filipino people assisted by units of the New Armed
AND/OR OLIVER A. LOZANO VS. PRESIDENT Forces of the Philippines."
CORAZON C. AQUINO, ET AL.
SIRS/MESDAMES: ISSUE:

Quoted hereunder, for your information, is a resolution of Whether or not the government of Corazon Aquino is
this Court MAY 22, 1986. legitimate.

In G.R. No. 73748, Lawyers League for a Better HELD:

Philippines vs. President Corazon C. Aquino, et al.; G.R.
No. 73972, People's Crusade for Supremacy of the
Constitution vs. Mrs. Cory Aquino, et al., and G.R. No.
73990, Councilor Clifton U. Ganay vs. Corazon C.
Aquino, et al., the legitimacy of the government of
President Aquino is questioned. It is claimed that her
government is illegal because it was not established
pursuant to the 1973 Constitution.
As early as April 10, 1986, this Court* had already voted
to dismiss the petitions for the reasons to be stated below.
On April 17, 1986, Atty. Lozano as counsel for the
petitioners in G.R. Nos. 73748 and 73972 withdrew the
petitions and manifested that they would pursue the
question by extra-judicial methods. The withdrawal is
functus oficio.
Yes. The legitimacy of the Aquino government is not a
justiciable matter but belongs to the realm of politics
where only the people are the judge.
The Court further held that:
The people have accepted the Aquino government
which is in effective control of the entire country;
It is not merely a de facto government but in fact and
law a de jure government; and
The community of nations has recognized the
legitimacy of the new government.

The three petitions obviously are not impressed with

merit. Petitioners have no personality to sue and their
petitions state no cause of action. For the legitimacy of the
Aquino government is not a justiciable matter. It belongs
to the realm of politics where only the people of the
Philippines are the judge. And the people have made the
judgment; they have accepted the government of
President Corazon C. Aquino which is in effective control
of the entire country so that it is not merely a de facto
government but is in fact and law a de jure government.
Moreover, the community of nations has recognized the
legitimacy of the present government. All the eleven
members of this Court, as reorganized, have sworn to
uphold the fundamental law of the Republic under her
government.

In view of the foregoing, the petitions are hereby

dismissed.

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court

Page 17 of 45
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAÑADA et., petitioners, vs.
EDGARDO ANGARA, et, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the
vast majority of countries has revolutionized
international business and economic relations amongst
states. It has irreversibly propelled the world towards
trade liberalization and economic globalization.
Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are
ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best
in specific industries in a market-driven and export-
oriented global scenario are replacing age-old beggar-
thy-neighbor policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In
the words of Peter Drucker, the well-known
management guru, Increased participation in the world
economy has become the key to domestic economic
growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation
wrought by the Second World War, plans for the
establishment of three multilateral institutions -- inspired
by that grand political body, the United Nations -- were
discussed at Dumbarton Oaks and Bretton Woods. The
first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and
later developing countries; the second, the International
Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade
Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of
reasons, including its non-ratification by the United
States, the ITO, unlike the IMF and WB, never took off.
What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty
adherents with no institutionalized body administering
the agreements or dependable system of dispute
settlement.
After half a century and several dizzying rounds of
negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave
birth to that administering body -- the World Trade
Organization -- with the signing of the Final Act in
Marrakesh, Morocco and the ratification of the WTO
Agreement by its members. [1]
Like many other developing countries, the Philippines
joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to
the Senate (infra), of improving Philippine access to
foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports,
particularly agricultural and industrial products. The
President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction
of) costs and uncertainty associated with exporting x x x,
and (the attraction of) more investments into the country.
Although the Chief Executive did not expressly mention
it in his letter, the Philippines - - and this is of special
interest to the legal profession - - will benefit from the
WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement
bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were
settled mainly through negotiations where solutions were
arrived at frequently on the basis of relative bargaining
strengths, and where naturally, weak and
underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the
Philippines to place nationals and products of member-
countries on the same footing as Filipinos and local
products and (2) that the WTO intrudes, limits and/or
impairs the constitutional powers of both Congress and
the Supreme Court, the instant petition before this Court
assails the WTO Agreement for violating the mandate of
the 1987 Constitution to develop a self-reliant and
independent national economy effectively controlled by
Filipinos x x x (to) give preference to qualified Filipinos
(and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit
Philippine participation in worldwide trade liberalization
and economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized,
deregulated and privatized? These are the main questions
raised in this petition for certiorari, prohibition and
mandamus under Rule 65 of the Rules of Court praying
(1) for the nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the ratification
by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and
utilization of public funds, the assignment of public
officials and employees, as well as the use of
government properties and resources by respondent-
heads of various executive offices concerned therewith.
This concurrence is embodied in Senate Resolution No.
97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then
Secretary of the Department of Trade and Industry
(Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the
Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
Page 18 of 45
By signing the Final Act, [2] Secretary Navarro on
behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for
the consideration of their respective competent
authorities, with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine
Senate received a letter dated August 11, 1994 from the
President of the Philippines, [3] stating among others
that the Uruguay Round Final Act is hereby submitted to
the Senate for its concurrence pursuant to Section 21,
Article VII of the Constitution.
On August 13, 1994, the members of the Philippine
Senate received another letter from the President of the
Philippines [4] likewise dated August 11, 1994, which
stated among others that the Uruguay Round Final Act,
the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in
Financial Services are hereby submitted to the Senate for
its concurrence pursuant to Section 21, Article VII of the
Constitution.
On December 9, 1994, the President of the Philippines
certified the necessity of the immediate adoption of P.S.
1083, a resolution entitled Concurring in the Ratification
of the Agreement Establishing the World Trade
Organization. [5]
On December 14, 1994, the Philippine Senate adopted
Resolution No. 97 which Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in
the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization.
[6] The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay
Round of Multilateral Trade Negotiations and includes
various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3
thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs
and Trade 1994
Agreement on Agriculture
Agreement on the Application of
Sanitary and
Phytosanitary Measures
Agreement on Textiles and
Clothing
Agreement on Technical Barriers
to Trade
Agreement on Trade-Related
Investment Measures
Agreement on Implementation of
Article VI of the General
Agreement on Tariffs and
Trade 1994
Agreement on Implementation of
Article VII of the General
on Tariffs and Trade 1994
Agreement on Pre-Shipment
Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing
Procedures
Agreement on Subsidies and
Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and
Annexes
Annex 1C: Agreement on Trade-Related Aspects of
Intellectual Property Rights
ANNEX 2
Understanding on Rules and
Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines
signed [7] the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V.
RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned
Agreement Establishing the World Trade Organization
and the agreements and associated legal instruments
included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof, signed
at Marrakesh, Morocco on 15 April 1994, do hereby
ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the
President of the Philippines is composed of the
Agreement Proper and the associated legal instruments
included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary
Navarro embodies not only the WTO Agreement (and its
integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the
Understanding on Commitments in Financial Services.
In his Memorandum dated May 13, 1996, [8] the
Solicitor General describes these two latter documents as
follows:
The Ministerial Decisions and Declarations are twenty-
five declarations and decisions on a wide range of
matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and
agreements on technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial
Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing
non-conforming measures, market access, national
treatment, and definitions of non-resident supplier of
financial services, commercial presence and new
financial service.
Page 19 of 45
On December 29, 1994, the present petition was filed.
After careful deliberation on respondents comment and
petitioners reply thereto, the Court resolved on
December 12, 1995, to give due course to the petition,
and the parties thereafter filed their respective
memoranda. The Court also requested the Honorable
Lilia R. Bautista, the Philippine Ambassador to the
United Nations stationed in Geneva, Switzerland, to
submit a paper, hereafter referred to as Bautista Paper,
[9] for brevity, (1) providing a historical background of
and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the
Court directed:
(a) the petitioners to submit the (1) Senate Committee
Report on the matter in controversy and (2) the transcript
of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to
file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of
the multi-volume WTO Agreement and other documents
mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said
it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume
Uruguay Round of Multilateral Trade Negotiations, and
in another Compliance dated October 24, 1996, he listed
the various bilateral or multilateral treaties or
international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand,
submitted their Compliance dated January 28, 1997, on
January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or is
otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading
to the concurrence are estopped from impugning the
validity of the Agreement Establishing the World
Trade Organization or of the validity of the
concurrence.
C. Whether the provisions of the Agreement Establishing
the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and
12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing
the World Trade Organization unduly limit, restrict
and impair Philippine sovereignty specifically the
legislative power which, under Sec. 2, Article VI,
1987 Philippine Constitution is vested in the
Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the
World Trade Organization interfere with the exercise
of judicial power.
F. Whether the respondent members of the Senate acted
in grave abuse of discretion amounting to lack or
excess of jurisdiction when they voted for
concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the
World Trade Organization.
G. Whether the respondent members of the Senate acted
in grave abuse of discretion amounting to lack or
excess of jurisdiction when they concurred only in
the ratification of the Agreement Establishing the
World Trade Organization, and not with the
Presidential submission which included the Final
Act, Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial
Services.
On the other hand, the Solicitor General as counsel for
respondents synthesized the several issues raised by
petitioners into the following: [10]
1. Whether or not the provisions of the Agreement
Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included
in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or
undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the
1987 Constitution.
2. Whether or not certain provisions of the Agreement
unduly limit, restrict or impair the exercise of legislative
power by Congress.
3. Whether or not certain provisions of the Agreement
impair the exercise of judicial power by this Honorable
Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the
ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization
implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven
presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the
petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate
(Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the
respondent-members of the Senate acted in grave abuse
of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these
three issues thus:
(1) The political question issue -- being very
fundamental and vital, and being a matter that probes
into the very jurisdiction of this Court to hear and decide
this case -- was deliberated upon by the Court and will
thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because
this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their
pleadings; in any event, this issue, even if ruled in
respondents favor, will not cause the petitions dismissal
as there are petitioners other than the two senators, who
are not vulnerable to the defense of estoppel; and
Page 20 of 45
(3) The issue of alleged grave abuse of discretion on the
part of the respondent senators will be taken up as an
integral part of the disposition of the four issues raised
by the Solicitor General.
During its deliberations on the case, the Court noted that
the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that
grave constitutional issues, expenditures of public funds
and serious international commitments of the nation are
involved here, and that transcendental public interest
requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected by
procedural matters. [11]
To recapitulate, the issues that will be ruled upon shortly
are:
(1) DOES THE PETITION PRESENT A
JUSTICIABLE CONTROVERSY?
OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL
QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO
AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND
SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID
AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE
OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR
OR INTERFERE WITH THE EXERCISE OF
JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE
SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR
VALID, CONSIDERING THAT IT DID
NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND
DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS
IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over
the Controversy?
In seeking to nullify an act of the Philippine Senate on
the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where
an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that
the supremacy of the Constitution is upheld. [12] Once a
controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in
the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide. [13]
The jurisdiction of this Court to adjudicate the matters
[14] raised in the petition is clearly set out in the 1987
Constitution, [15] as follows:
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.
The foregoing text emphasizes the judicial departments
duty and power to strike down grave abuse of discretion
on the part of any branch or instrumentality of
government including Congress. It is an innovation in
our political law. [16] As explained by former Chief
Justice Roberto Concepcion, [17] the judiciary is the
final arbiter on the question of whether or not a branch
of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously
as to constitute an abuse of discretion amounting to
excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in
many cases, [18] it will not shirk, digress from or
abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as
there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in
holding that this petition should be given due course and
the vital questions raised therein ruled upon under Rule
65 of the Rules of Court. Indeed, certiorari, prohibition
and mandamus are appropriate remedies to raise
constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and
executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction
over this petition, this Court will not review the wisdom
of the decision of the President and the Senate in
enlisting the country into the WTO, or pass upon the
merits of trade liberalization as a policy espoused by
said international body. Neither will it rule on the
propriety of the governments economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it
will only exercise its constitutional duty to determine
whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
the Senate in ratifying the WTO Agreement and its three
annexes.
Second Issue: The WTO Agreement and Economic
Nationalism
This is the lis mota, the main issue, raised by the
petition.
Page 21 of 45
Petitioners vigorously argue that the letter, spirit and
intent of the Constitution mandating economic
nationalism are violated by the so-called parity
provisions and national treatment clauses scattered in
various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments
in Financial Services.
Specifically, the flagship constitutional provisions
referred to are Sec. 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as
follows:
Article II
DECLARATION OF PRINCIPLES AND STATE
POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that
will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced
goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional
principles are desecrated by the following WTO
provisions quoted in their memorandum: [19]
a) In the area of investment measures related to trade
in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and
obligations under GATT 1994. no Member
shall apply any TRIM that is inconsistent
with the provisions of Article III or Article
XI of GATT 1994.
2. An Illustrative list of TRIMS that are
inconsistent with the obligations of general
elimination of quantitative restrictions
provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to
this Agreement. (Agreement on Trade-
Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments,
p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the
obligation of national treatment provided for
in paragraph 4 of Article III of GATT 1994
include those which are mandatory or
enforceable under domestic law or under
administrative rulings, or compliance with
which is necessary to obtain an advantage, and
which require:
(a) the purchase or use by an enterprise of
products of domestic origin or from any
domestic source, whether specified in
terms of particular products, in terms of
volume or value of products, or in terms
of proportion of volume or value of its
local production; or
(b) that an enterprises purchases or use of
imported products be limited to an amount
related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations
of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of
GATT 1994 include those which are mandatory
or enforceable under domestic laws or under
administrative rulings, or compliance with
which is necessary to obtain an advantage, and
which restrict:
(a) the importation by an enterprise of products
used in or related to the local production
that it exports;
(b) the importation by an enterprise of products
used in or related to its local production by
restricting its access to foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export specified
in terms of particular products, in terms of
volume or value of products, or in terms of
a preparation of volume or value of its local
production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol.
27, Uruguay Round Legal Documents,
p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to
is quoted as follows:
The products of the territory of any contracting party
imported into the territory of any other contracting party
shall be accorded treatment no less favorable than
that accorded to like products of national origin in
respect of laws, regulations and requirements affecting
their internal sale, offering for sale, purchase,
transportation, distribution or use. the provisions of this
paragraph shall not prevent the application of differential
internal transportation charges which are based
exclusively on the economic operation of the means of
transport and not on the nationality of the product.
(Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay Round, Legal Instruments
p.177, emphasis supplied).
Page 22 of 45
b) In the area of trade related aspects of intellectual
property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other
Members treatment no less favourable than that it
accords to its own nationals with regard to the
protection of intellectual property... (par. 1, Article 3,
Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in
Services:
National Treatment
1. In the sectors inscribed in its schedule, and
subject to any conditions and qualifications
set out therein, each Member shall accord to
services and service suppliers of any other
Member, in respect of all measures affecting
the supply of services, treatment no less
favourable than it accords to its own like
services and service suppliers.
2. A Member may meet the requirement of
paragraph I by according to services and
service suppliers of any other Member,
either formally identical treatment or
formally different treatment to that it
accords to its own like services and service
suppliers.
3. Formally identical or formally different
treatment shall be considered to be less
favourable if it modifies the conditions of
completion in favour of services or service
suppliers of the Member compared to like
services or service suppliers of any other
Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay
Round Legal Instruments, p.22610 emphasis
supplied).
It is petitioners position that the foregoing national
treatment and parity provisions of the WTO Agreement
place nationals and products of member countries on the
same footing as Filipinos and local products, in
contravention of the Filipino First policy of the
Constitution. They allegedly render meaningless the
phrase effectively controlled by Filipinos. The
constitutional conflict becomes more manifest when
viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity
of its laws, regulations and administrative procedures
with its obligations as provided in the annexed
agreements. [20] Petitioners further argue that these
provisions contravene constitutional limitations on the
role exports play in national development and negate the
preferential treatment accorded to Filipino labor,
domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor
General counter (1) that such Charter provisions are not
self-executing and merely set out general policies; (2)
that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but
should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with the
Constitution; and (4) that the WTO Agreement contains
sufficient provisions to protect developing countries like
the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a
declaration of principles and state policies. The
counterpart of this article in the 1935 Constitution [21] is
called the basic political creed of the nation by Dean
Vicente Sinco. [22] These principles in Article II are not
intended to be self-executing principles ready for
enforcement through the courts. [23] They are used by
the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, [24] the principles
and state policies enumerated in Article II and some
sections of Article XII are not self-executing provisions,
the disregard of which can give rise to a cause of action
in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor [25] that
broad constitutional principles need legislative
enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates
Sections 11 (Personal Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of
Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state
also that these are merely statements of principles and
policies. As such, they are basically not self-executing,
meaning a law should be passed by Congress to clearly
define and effectuate such principles.
In general, therefore, the 1935 provisions were not
intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the
legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy
was not judicial but political. The electorate could
express their displeasure with the failure of the executive
and the legislature through the language of the ballot.
(Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of broad constitutional principles are
sourced from basic considerations of due process and the
lack of judicial authority to wade into the uncharted
ocean of social and economic policy making. Mr. Justice
Florentino P. Feliciano in his concurring opinion in
Oposa vs. Factoran, Jr., [26] explained these reasons as
follows:
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right -- a right cast
in language of a significantly lower order of generality
than Article II (15) of the Constitution -- that is or may
be violated by the actions, or failures to act, imputed to
the public respondent by petitioners so that the trial court
can validly render judgment granting all or part of the
relief prayed for.
Page 23 of 45
To my mind, the court should be understood as simply
saying that such a more specific legal right or rights may
well exist in our corpus of law, considering the general
policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that
the trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
unless the legal right claimed to have been violated or
disregarded is given specification in operational terms,
defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are
due process dimensions to this matter.
The second is a broader-gauge consideration -- where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Section 1. xxx
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
(Emphases supplied)
When substantive standards as general as the right to a
balanced and healthy ecology and the right to health are
combined with remedial standards as broad ranging as a
grave abuse of discretion amounting to lack or excess of
jurisdiction, the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect
of the vast area of environmental protection and
management, our courts have no claim to special
technical competence and experience and professional
qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making
departments -- the legislative and executive departments
-- must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.
Economic Nationalism Should Be Read with Other
Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart
from merely laying down general principles relating to
the national economy and patrimony, should be read and
understood in relation to the other sections in said
article, especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy are a more
equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the
people; and an expanding productivity as the key to
raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full
employment based on sound agricultural development
and agrarian reform, through industries that make full
and efficient use of human and natural resources, and
which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade
practices.
In the pursuit of these goals, all sectors of the economy
and all regions of the country shall be given optimum
opportunity to develop. x x x
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 and reciprocity; [30]
and speaks of industries which are competitive in both
domestic and foreign markets as well as of the protection
of Filipino enterprises against unfair foreign competition
and trade practices.
It is true that in the recent case of Manila Prince Hotel
vs. Government Service Insurance System, et al., [31]
this Court held that Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further
guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se
judicially enforceable. However, as the constitutional
provision itself states, it is enforceable only in regard to
the grants of rights, privileges and concessions covering
national economy and patrimony and not to every aspect
of trade and commerce. It refers to exceptions rather
than the rule.
Page 24 of 45
The issue here is not whether this paragraph of Sec. 10
of Art. XII is self-executing or not. Rather, the issue is
whether, as a rule, there are enough balancing provisions
in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we
hold that there are.
All told, while the Constitution indeed mandates a bias
in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases
of equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition and
trade practices that are unfair. [32] In other words, the
Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited
entry of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is
unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the
WTO itself has some built-in advantages to protect weak
and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the
Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each members vote
equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible,
otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member
which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments
to MFN provisions and the Amendments provision will
require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals. [33]
Hence, poor countries can protect their common interests
more effectively through the WTO than through one-on-
one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to
push their economic agenda more decisively than
outside the Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO
Agreement recognize the need of developing countries
like the Philippines to share in the growth in
international trade commensurate with the needs of their
economic development. These basic principles are found
in the preamble [34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment
and a large and steadily growing volume of real income
and effective demand, and expanding the production of
and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with
the objective of sustainable development, seeking both
to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their
respective needs and concerns at different levels of
economic development,
Recognizing further that there is need for positive efforts
designed to ensure that developing countries, and
especially the least developed among them, secure a
share in the growth in international trade commensurate
with the needs of their economic development,
Being desirous of contributing to these objectives by
entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of
tariffs and other barriers to trade and to the elimination
of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more
viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and
Trade, the results of past trade liberalization efforts, and
all of the results of the Uruguay Round of Multilateral
Trade Negotiations,
Determined to preserve the basic principles and to
further the objectives underlying this multilateral trading
system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to
and consistent with the foregoing basic principles, the
WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus,
with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of
tariff reduction and the period within which the
reduction is to be spread out. Specifically, GATT
requires an average tariff reduction rate of 36% for
developed countries to be effected within a period of six
(6) years while developing countries -- including the
Philippines -- are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires
developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as
compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products,
GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries,
however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period
of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection
from unfair foreign competition and trade practices
including anti-dumping measures, countervailing
measures and safeguards against import surges. Where
local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures.
There is hardly therefore any basis for the statement that
under the WTO, local industries and enterprises will all
be wiped out and that Filipinos will be deprived of
control of the economy.
Page 25 of 45
Quite the contrary, the weaker situations of developing
nations like the Philippines have been taken into
account; thus, there would be no basis to say that in
joining the WTO, the respondents have gravely abused
their discretion. True, they have made a bold decision to
steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set
aside on the ground of grave abuse of discretion, simply
because we disagree with it or simply because we
believe only in other economic policies. As earlier
stated, the Court in taking jurisdiction of this case will
not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform
its constitutional duty of determining whether the Senate
committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant
and independent national economy [35] does not
necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither economic
seclusion nor mendicancy in the international
community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the
freedom from undue foreign control of the national
economy, especially in such strategic industries as in the
development of natural resources and public utilities.
[36]
The WTO reliance on most favored nation, national
treatment, and trade without discrimination cannot be
struck down as unconstitutional as in fact they are rules
of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based
on equality and reciprocity, [37] the fundamental law
encourages industries that are competitive in both
domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade
environment, but one in favor of the gradual
development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino
managers and Filipino enterprises have shown capability
and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers
in Hongkong have demonstrated the Filipino capacity to
grow and to prosper against the best offered under a
policy of laissez faire.
Constitution Favors Consumers, Not Industries or
Enterprises
The Constitution has not really shown any unbalanced
bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino
companies should be pampered with a total proscription
of foreign competition. On the other hand, respondents
claim that WTO/GATT aims to make available to the
Filipino consumer the best goods and services obtainable
anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether
WTO/GATT will favor the general welfare of the public
at large.
Will adherence to the WTO treaty bring this ideal (of
favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos
general welfare because it will -- as promised by its
promoters -- expand the countrys exports and generate
more employment?
Will it bring more prosperity, employment, purchasing
power and quality products at the most reasonable rates
to the Filipino public?
The responses to these questions involve judgment calls
by our policy makers, for which they are answerable to
our people during appropriate electoral exercises. Such
questions and the answers thereto are not subject to
judicial pronouncements based on grave abuse of
discretion.
Constitution Designed to Meet Future Events and
Contingencies
No doubt, the WTO Agreement was not yet in existence
when the Constitution was drafted and ratified in 1987.
That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not
have anticipated the advent of a borderless world of
business. By the same token, the United Nations was not
yet in existence when the 1935 Constitution became
effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution
of the absoluteness of sovereignty when the Philippines
signed the UN Charter, thereby effectively surrendering
part of its control over its foreign relations to the
decisions of various UN organs like the Security
Council?
It is not difficult to answer this question.
Constitutions are designed to meet not only the vagaries
of contemporary events. They should be interpreted to
cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can withstand
the assaults of bigots and infidels but at the same time
bend with the refreshing winds of change necessitated by
unfolding events. As one eminent political law writer
and respected jurist [38] explains:
The Constitution must be quintessential rather than
superficial, the root and not the blossom, the base and
framework only of the edifice that is yet to rise. It is but
the core of the dream that must take shape, not in a
twinkling by mandate of our delegates, but slowly in the
crucible of Filipino minds and hearts, where it will in
time develop its sinews and gradually gather its strength
and finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise full-
grown from the brow of the Constitutional Convention,
nor can it conjure by mere fiat an instant Utopia. It must
grow with the society it seeks to re-structure and march
apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that
will keep it, far from becoming a petrified rule, a
pulsing, living law attuned to the heartbeat of the nation.
Page 26 of 45
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall
ensure the conformity of its laws, regulations and
administrative procedures with its obligations as
provided in the annexed Agreements. [39] Petitioners
maintain that this undertaking unduly limits, restricts and
impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the
1987 Philippine Constitution is vested in the Congress of
the Philippines. It is an assault on the sovereign powers
of the Philippines because this means that Congress
could not pass legislation that will be good for our
national interest and general welfare if such legislation
will not conform with the WTO Agreement, which not
only relates to the trade in goods x x x but also to the
flow of investments and money x x x as well as to a
whole slew of agreements on socio-cultural matters x x
x. [40]
More specifically, petitioners claim that said WTO
proviso derogates from the power to tax, which is lodged
in the Congress. [41] And while the Constitution allows
Congress to authorize the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues,
and other duties or imposts, such authority is subject to
specified limits and x x x such limitations and
restrictions as Congress may provide, [42] as in fact it
did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion
by which petitioners stressed their arguments on this
issue. However, while sovereignty has traditionally been
deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a
hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies,
the Constitution adopts the generally accepted principles
of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom,
cooperation and amity, with all nations." [43] By the
doctrine of incorporation, the country is bound by
generally accepted principles of international law, which
are considered to be automatically part of our own laws.
[44] One of the oldest and most fundamental rules in
international law is pacta sunt servanda -- international
agreements must be performed in good faith. A treaty
engagement is not a mere moral obligation but creates a
legally binding obligation on the parties x x x. A state
which has contracted valid international obligations is
bound to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations undertaken. [45]
By their inherent nature, treaties really limit or restrict
the absoluteness of sovereignty. By their voluntary act,
nations may surrender some aspects of their state power
in exchange for greater benefits granted by or derived
from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations. [46] The sovereignty of a state therefore
cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family
of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, Today, no
nation can build its destiny alone. The age of self-
sufficient nationalism is over. The age of
interdependence is here. [47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as
one of its 51 charter members, it consented to restrict its
sovereign rights under the concept of sovereignty as
auto-limitation. 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:
Page 27 of 45
(a) Bilateral convention with the United States
regarding taxes on income, where the
Philippines agreed, among others, to exempt
from tax, income received in the Philippines
by, among others, the Federal Reserve Bank of
the United States, the Export/Import Bank of
the United States, the Overseas Private
Investment Corporation of the United States.
Likewise, in said convention, wages, salaries
and similar remunerations paid by the United
States to its citizens for labor and personal
services performed by them as employees or
officials of the United States are exempt from
income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing,
among others, for the avoidance of double
taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of
Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic
for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea
where the Philippines agreed to exempt from
all customs duties, inspection fees and other
duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan,
where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees
and other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on
Philippine soil.
(g) Bilateral air service agreement with Belgium
where the Philippines granted Belgian air
carriers the same privileges as those granted to
Japanese and Korean air carriers under separate
air service agreements.
(h) Bilateral notes with Israel for the abolition of
transit and visitor visas where the Philippines
exempted Israeli nationals from the
requirement of obtaining transit or visitor visas
for a sojourn in the Philippines not exceeding
59 days.
(I) Bilateral agreement with France exempting
French nationals from the requirement of
obtaining transit and visitor visa for a sojourn
not exceeding 59 days.
(j) Multilateral Convention on Special Missions,
where the Philippines agreed that premises of
Special Missions in the Philippines are
inviolable and its agents can not enter said
premises without consent of the Head of
Mission concerned. Special Missions are also
exempted from customs duties, taxes and
related charges.
(k) Multilateral Convention on the Law of Treaties.
In this convention, the Philippines agreed to be
governed by the Vienna Convention on the
Law of Treaties.
(l) Declaration of the President of the Philippines
accepting compulsory jurisdiction of the
International Court of Justice. The International
Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a
treaty, any question of international law, the
existence of any fact which, if established,
would constitute a breach of international
obligation.
In the foregoing treaties, the Philippines has effectively
agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The
underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other
contracting states in granting the same privilege and
immunities to the Philippines, its officials and its
citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But
unless anarchy in international relations is preferred as
an alternative, in most cases we accept that the benefits
of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade
treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute
resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller
countries, by subjecting power relations to some form of
legal ordering. In addition, smaller countries typically
stand to gain disproportionately from trade
liberalization. This is due to the simple fact that
liberalization will provide access to a larger set of
potential new trading relationship than in case of the
larger country gaining enhanced success to the smaller
countrys market. [48]
The point is that, as shown by the foregoing treaties, a
portion of sovereignty may be waived without violating
the Constitution, based on the rationale that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of x x x cooperation and amity with
all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the
General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) [49] intrudes on the power of
the Supreme Court to promulgate rules concerning
pleading, practice and procedures. [50]
To understand the scope and meaning of Article 34,
TRIPS, [51] it will be fruitful to restate its full text as
follows:
Page 28 of 45
 Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect
of the infringement of the rights of the owner
referred to in paragraph 1(b) of Article 28, if the
subject matter of a patent is a process for obtaining
a product, the judicial authorities shall have the
authority to order the defendant to prove that the
process to obtain an identical product is different
from the patented process. Therefore, Members
shall provide, in at least one of the following
circumstances, that any identical product when
produced without the consent of the patent owner
shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented
process:
(a) if the product obtained by the patented process is
new;
(b) if there is a substantial likelihood that the
identical product was made by the process
and the owner of the patent has been
unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the
burden of proof indicated in paragraph 1 shall be on
the alleged infringer only if the condition referred
to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is
fulfilled.
3. In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken
into account.
From the above, a WTO Member is required to provide
a rule of disputable (note the words in the absence of
proof to the contrary) presumption that a product shown
to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the
(illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2)
where there is substantial likelihood that the identical
product was made with the use of the said patented
process but the owner of the patent could not determine
the exact process used in obtaining such identical
product. Hence, the burden of proof contemplated by
Article 34 should actually be understood as the duty of
the alleged patent infringer to overthrow such
presumption. Such burden, properly understood, actually
refers to the burden of evidence (burden of going
forward) placed on the producer of the identical (or fake)
product to show that his product was produced without
the use of the patented process.
The foregoing notwithstanding, the patent owner still has
the burden of proof since, regardless of the presumption
provided under paragraph 1 of Article 34, such owner
still has to introduce evidence of the existence of the
alleged identical product, the fact that it is identical to
the genuine one produced by the patented process and
the fact of newness of the genuine product or the fact of
substantial likelihood that the identical product was
made by the patented process.
The foregoing should really present no problem in
changing the rules of evidence as the present law on the
subject, Republic Act No. 165, as amended, otherwise
known as the Patent Law, provides a similar
presumption in cases of infringement of patented design
or utility model, thus:
SEC. 60. Infringement. - Infringement of a design
patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility
model for the purpose of trade or industry in the article
or product and in the making, using or selling of the
article or product copying the patented design or utility
model. Identity or substantial identity with the patented
design or utility model shall constitute evidence of
copying. (underscoring supplied)
Moreover, it should be noted that the requirement of
Article 34 to provide a disputable presumption applies
only if (1) the product obtained by the patented process
is NEW or (2) there is a substantial likelihood that the
identical product was made by the process and the
process owner has not been able through reasonable
effort to determine the process used. Where either of
these two provisos does not obtain, members shall be
free to determine the appropriate method of
implementing the provisions of TRIPS within their own
internal systems and processes.
By and large, the arguments adduced in connection with
our disposition of the third issue -- derogation of
legislative power - will apply to this fourth issue also.
Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides,
Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial
system.
So too, since the Philippine is a signatory to most
international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of
procedure will not be substantial. [52]
Fifth Issue: Concurrence Only in the WTO Agreement
and Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the
WTO Agreement and its annexes -- but not in the other
documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services --
is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a
rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation
of the Republic upon authority of the President. They
contend that the second letter of the President to the
Senate [53] which enumerated what constitutes the Final
Act should have been the subject of concurrence of the
Senate.
Page 29 of 45
A final act, sometimes called protocol de clture, is an
instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference. [54] It is not the treaty itself. It is rather a
summary of the proceedings of a protracted conference
which may have taken place over several years. The text
of the Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations is contained in
just one page [55] in Vol. I of the 36-volume Uruguay
Round of Multilateral Trade Negotiations. By signing
said Final Act, Secretary Navarro as representative of the
Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement
for the consideration of their respective
competent authorities with a view to seeking
approval of the Agreement in accordance with
their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed
concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the
WTO Agreement.
The Ministerial Declarations and Decisions were
deemed adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of
GATT which provides that representatives of the
members can meet to give effect to those provisions of
this Agreement which invoke joint action, and generally
with a view to facilitating the operation and furthering
the objectives of this Agreement. [56]
The Understanding on Commitments in Financial
Services also approved in Marrakesh does not apply to
the Philippines. It applies only to those 27 Members
which have indicated in their respective schedules of
commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and
processing of information, and national treatment with
respect to access to payment, clearing systems and
refinancing available in the normal course of business.
[57]
On the other hand, the WTO Agreement itself expresses
what multilateral agreements are deemed included as its
integral parts, [58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional
framework for the conduct of trade relations among
its Members in matters to the agreements and
associated legal instruments included in the
Annexes to this Agreement.
2. The Agreements and associated legal instruments
included in Annexes 1, 2, and 3 (hereinafter
referred to as Multilateral Agreements) are integral
parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments
included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted
them, and are binding on those Members. The
Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade
1994 as specified in annex 1A (hereinafter referred
to as GATT 1994) is legally distinct from the
General Agreement on Tariffs and Trade, dated 30
October 1947, annexed to the Final Act adopted at
the conclusion of the Second Session of the
Preparatory Committee of the United Nations
Conference on Trade and Employment, as
subsequently rectified, amended or modified
(hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of
what it was concurring in as shown by the members
deliberation on August 25, 1994. After reading the letter
of President Ramos dated August 11, 1994, [59] the
senators of the Republic minutely dissected what the
Senate was concurring in, as follows: [60]
THE CHAIRMAN: Yes. Now, the question of the
validity of the submission came up in the first day
hearing of this Committee yesterday. Was the
observation made by Senator Taada that what was
submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final
act of the Uruguay Round which is not the same as the
agreement establishing the World Trade Organization?
And on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative
solution at that time was acceptable. That suggestion
was to treat the proceedings of the Committee as being
in the nature of briefings for Senators until the question
of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President
submitting a new... is he making a new submission
which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is
clear cut and there should be no misunderstanding, it
was his intention to clarify all matters by giving this
letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later
on Senator Tolentino since they were the ones that raised
this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now
clearly appear that what is being submitted to the Senate
for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade
Organization as well as the Ministerial Declarations and
Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new
submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we
hear from Senator Tolentino? And after him Senator
Neptali Gonzales and Senator Lina.
Page 30 of 45
SEN TOLENTINO, Mr. Chairman, I have not seen the
new submission actually transmitted to us but I saw the
draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act
itself. The Constitution does not require us to ratify the
Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what
is going to be submitted to with the governments of the
participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives
agree: (a) to submit as appropriate the WTO Agreement
for the consideration of the respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to
be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures
may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted
now, I think it satisfies both the Constitution and the
Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May
I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this
matter are already a matter of record. And they had been
adequately reflected in the journal of yesterdays session
and I dont see any need for repeating the same.
Now, I would consider the new submission as an act ex
abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales.
Senator Lina, do you want to make any comment on
this?
SEN. LINA. Mr. President, I agree with the observation
just made by Senator Gonzales out of the abundance of
question. Then the new submission is, I believe, stating
the obvious and therefore I have no further comment to
make.
Epilogue
In praying for the nullification of the Philippine
ratification of the WTO Agreement, petitioners are
invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the Senate in giving its concurrence therein
via Senate Resolution No. 97.
Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court under
Rule 65 of the Rules of Court when it is amply shown
that petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious
and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. [61] Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the
power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. [62]
Failure on the part of the petitioner to show grave abuse
of discretion will result in the dismissal of the petition.
[63]
In rendering this Decision, this Court never forgets that
the Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled to
great respect in its actions. It is itself a constitutional
body independent and coordinate, and thus its actions
are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are
presented to overthrow such presumptions, this Court
will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and
the presumption of regularity in the Senates processes,
this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senates exercise of its power
of concurrence in the WTO Agreement granted it by
Sec. 21 of Article VII of the Constitution. [64]
It is true, as alleged by petitioners, that broad
constitutional principles require the State to develop an
independent national economy effectively controlled by
Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced
goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a
trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of
equality and reciprocity and the promotion of industries
which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said treaty.
So too, the alleged impairment of sovereignty in the
exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of
international law as part of the law of the land and the
adherence of the Constitution to the policy of
cooperation and amity with all nations.
Page 31 of 45
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.

Page 32 of 45
 EN BANC
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET
AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz,
JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the
respondents, the Chief of Staff and the General Court
Martial of the Philippine Army, be commanded to desist
from further proceedings in the trial of petitioners before
that body. Preliminary injunction having been denied by
us and the General Court Martial having gone ahead
with the trial, which eventually resulted in the acquittal
of one of the defendants, Ramon Ruffy, the dismissal of
the case as to another, Victoriano Dinglasan, and the
conviction of Jose L. Garcia, Prudente M. Francisco,
Dominador Adeva and Andres Fortus, the last-named
four petitioners now seek in their memorandum to
convert the petition into one for certiorari, with the
prayer that the records of the proceedings before the
General Court Martial be ordered certified to this court
for review.
The ground of the petition was that the petitioners were
not subject to military law at the time the offense for
which they had been placed on trial was committed. In
their memorandum they have raised an additional
question of law — that the 93d Article of War is
unconstitutional.
An outline of the petitioner's previous connection with
the Philippine Army, the Philippine Constabulary, and/or
with guerrilla organizations will presently be made. This
outline is based on allegations in the petition and the
answer, and on exhibits attached thereto and to the
parties' memoranda, exhibits which were offered in the
course of the oral argument and admitted without
objection. The said exhibits are public documents
certified by the officials who had them in custody in
their official capacity. They are presumed to be
authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8,
1941, Ramon Ruffy was the Provincial Commander,
Prudente M. Francisco, a junior officer, and Andres
Fortus, a corporal, all of the Philippine Constabulary
garrison stationed in Mindoro. When, on February 27,
1942, the Japanese forces landed in Mindoro, Major
Ruffy retreated to the mountains instead of surrendering
to the enemy, disbanded his company, and organized and
led a guerrilla outfit known as Bolo Combat team of
Bolo Area. Lieutenant Francisco, Corporal Fortus and
Jose L. Garcia, the last then a civilian joined Major
Ruffy's organization towards the latter part of 1942,
while Dominador Adeva and Victoriano Dinglasan, then
likewise civilians, became its members some time in
1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then
a lieutenant colonel of the Philippine Army, also took to
the hills of Panay and led the operation of the 6th
Military District, one of the districts into which the
Philippine Army had been divided before the war. About
November, 1942, Colonel Peralta succeeded in
contacting the General Headquarters of General
MacArthur in Australia as the result of which on
February 13, 1943, the 6th Military District was
recognized by the Headquarters of the Southwest Pacific
Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th
Military District Colonel Peralta had extended its sphere
of operation to comprise Mindoro and Marinduque, and
had, on January 2, 1943, named Major Ruffy as Acting
Commander for those two provinces and Commanding
Officer of the 3rd Battalion, 66 Infantry 61st Division,
Philippine Corps. After the recognition, 2d Lieut.
Prudente M. Francisco, by virtue of Special Orders No.
99, dated November 2, 1943, and signed by Enrique L.
Jurado, Major, OSE, Commanding, was assigned as S-3
in the Bolo Area. Major, later Lieut. Col., Jurado, it
should be noted, had been dispatched by the 6th Military
District to Mindoro to assume operational control
supervision over the Bolo Area unit and to make and
direct the necessary report to the Headquarters, 6th
Military District, in Panay. On April 26, 1944, by
General Orders No. 40 of the 6th Military District, 2d
Lieutenant Francisco was promoted to the rank of 1st
Lieutenant (Brevet), effective April 15, 1944, subject to
approval by the President of the Philippines, and was re-
assigned to the Bolo Area. As to Andres Fortus he was
assigned to the same Bolo Area as probationary 3d
lieutenant for two-month probationary training, by the
Headquarters of the 6th Military District, as per Special
Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th
Military District, dated January 1943, and signed by L.R.
Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia
and Dominador Adeva were appointed 3d lieutenants,
infantry as of December 31, 1942. Garcia later was
promoted to the rank of captain, effective March 15,
1943, as per Special Orders No. 82, issued in the field,
6th Military District, and dated August 28, 1943. On
May 24, 1943, Jose L. Garcia took his oath before
Captain Esteban P. Beloncio, then Acting Commanding
Officer, 3d Battalion, 66th Infantry Regiment, 61st
Division, 6th Military District.
As has been said, the 6th Military District sent Lieut.
Col. Enrique L. Jurado to be Commanding Officer of the
Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions,
Colonel Jurado on November 2, 1943, assigned Major
Ruffy as Commanding Officer of the Bolo Area with 3d
Lieut. Dominador Adeva and 2d Lieut. Prudente M.
Francisco as members of his staff and Victoriano
Dinglasan as Finance Officer, as per Special Orders No.
99 dated November 2, 1943. In a memorandum of
Colonel Jurado for Major Ruffy bearing date 25 June,
1944, it was stated that Captain Garcia had been given
P5,000 for palay and Lieut. Francisco P9,000, P5,000 for
palay and P4,000 for salary of the personnel B.
Company.
Page 33 of 45
A change in the command of the Bolo Area was effected
by Colonel Jurado on June 8, 1944: Major Ruffy was
relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in
Ruffy's place. On October 19, 1944, Lieut. Col. Jurado
was slain allegedly by the petitioners. After the
commission of this crime, the petitioners, it is alleged,
seceded from the 6th Military District. It was this murder
which gave rise to petitioner's trial, the legality of which
is now being contested.
On July 26, 1941, the President of the Untied States
issued a military order the pertinent paragraph of which
stated: ". . . as Commander in Chief of the Army and
Navy of the United States, I hereby call and order into
the service of the armed forces of the United States
Army, for the period of the existing emergency, and
place under the command of the general officer, United
States Army, to be designated by the Secretary of War,
from time to time, all of the organized military forces of
the Government of the Commonwealth." Following the
issuance of President Roosevelt's order General Douglas
MacArthur was appointed Commanding General of the
United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and
Lieutenant Fortus, that "by the enemy occupation of the
Philippines, the National Defense Act and all laws and
regulations creating and governing the existence of the
Philippine Army including the Articles of War, were
suspended and in abeyance during such belligerent
occupation."
The paragraph quoted in the petitioner's memorandum
from Winthrop's Military Law and Precedents and the
subsequent paragraph which has been omitted furnish a
complete answer to petitioner's contention of the
Philippines by Japanese forces, the officers and men of
the Philippine Army did not cease to be fully in the
service, though in a measure,' only in a measure, they
were not subject to the military jurisdiction, if they were
not active duty.
In the latter case, like officers and soldiers on leave of
absence or held as prisoners of war, they could not be
held guilty of a breach of the discipline of the command
or of a neglect of duty, or disobedience of orders, or
mutiny, or subject to a military trial therefor; but for an
act unbecoming an officer and a gentleman, or an act
which constitutes an offense of the class specified in the
95th Article of War, they may in general be legally held
subject to military jurisdiction and trial. "So a prisoner of
war, though not subject, while held by the enemy, to the
discipline of his own army, would, when exchanged of
paroled, be not exempt from liability for such offenses as
criminal acts or injuriuos conduct committed during his
captivity against other officers or soldiers in the same
status." (Winthrop's Military Law and Precedents, 2d
Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of
political nature or affecting political relations are
considered superseded or in abeyance during the military
occupation, is intended for the governing of the civil
inhabitants of the occupied territory. It is not intended
for and does not bind the enemies in arms. This is self-
evident from the very nature of things. The paradox of a
contrary ruling should readily manifest itself. Under the
petitioner's theory the forces of resistance operating in an
occupied territory would have to abide by the outlawing
of their own existence. They would be stripped of the
very life-blood of an army, the right and the ability to
maintain order and discipline within the organization
and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American
Forces does not profit the petitioner's who were former
members of the Philippine Constabulary any more than
does the rule of war or international law they cite. The
fall of Bataan and Corregidor did not end the war. It did
not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a
new army, regular or irregular, out of new men and men
in the old service who had refused to surrender or who
having surrendered, had decided to carry on the fight
through other diverse means and methods. The fall of
Corregidor and Bataan just marked the beginning of the
gigantic preparation for the gigantic drive that was to
fight its way to and beyond the Philippines in fulfillment
of General MacArthur's classic promise, "I shall return."
The heroic role which the guerrillas played in that
preparation and in the subsequent liberation of the
Philippines is now history.
Independently of their previous connection with the
Philippine Army and the Philippine Constabulary,
Captain Francisco and Lieutenant Fortus as well as
Major Garcia and Lieutenant Adeva were subject to
military jurisdiction.
The 2d Article of War defines and enumerates the
persons subject to military law as follows:
Art. 2. Persons Subject to Military Law. — The
following persons are subject to these articles
and shall be understood as included in the term
"any person subject to military law" or "persons
subject to military law," whenever used in these
articles:
(a) All officers, members of the Nurse Corps
and soldiers belonging to the Regular Force of
the Philippine Army; all reservists, from the
dates of their call to active duty and while on
such active duty; all trainees undergoing military
instructions; and all other persons lawfully
called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third
lieutenants;
(c) All retainers to the camp and all persons
accompanying or serving with the Army of the
Philippines in the field in time of war or when
martial law is declared though not otherwise
subject to these articles;
(d) All persons under sentences adjudged by
courts-martial.
Page 34 of 45
It is our opinion that the petitioners come within the
general application of the clause in sub-paragraph (a);
"and all other persons lawfully called, drafted, or ordered
into, or to duty for training in, the said service, from the
dates they are required by the terms of the call, draft, or
order to obey the same." By their acceptance of
appointments as officers in the Bolo Area from the
General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to
the Articles of War. The Bolo Area, as has been seen,
was a contigent of the 6th Military District which, as has
also been pointed out, had been recognized by and
placed under the operational control of the United States
Army in the Southwest Pacific. The Bolo Area received
supplies and funds for the salaries of its officers and men
from the Southwest Pacific Command. As officers in the
Bolo Area and the 6th Military District, the petitioners
operated under the orders of duly established and duly
appointed commanders of the United States Army.
"Not belonging to the judicial branch of the government,
it follows that courts-martial must pertain to the
executive department; and they are in fact simply
instrumentalities of the executive power, provided by
Congress for the President as Commander in Chief, to
aid him in properly commanding the army and navy and
enforcing discipline therein, and utilized under his orders
or those of his authorized military representatives."
(Winthrop's Military Law and Precedents, 2d Edition, p.
49.) Of equal interest Clode, 2 M. F., 361, says of these
courts in the British law: "It must never be lost sight of
that the only legitimate object of military tribunals is to
aid the Crown to maintain the discipline and government
of the Army." (Footnote No. 24, p. 49, Winthrop's
Military Law and Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no
merit and that it should be dismissed with costs. It is so
ordered.

The attitude of the enemy toward underground

movements did not affect the military status of guerrillas
who had been called into the service of the Philippine
Army. If the invaders refused to look upon guerrillas,
without distinctions, as legitimate troops, that did not
stop the guerillas who had been inducted into the service
of the Philippine Army from being component parts
thereof, bound to obey military status of guerrillas was
to be judged not by the concept of the army of the
country for which they fought.

The constitutionality of the 93d Article of War is

assailed. This article ordains "that any person subject to
military law who commits murder in time of was shall
suffer death or imprisonment for life, as the court martial
may direct." It is argued that since "no review is
provided by that law to be made by the Supreme Court,
irrespective of whether the punishment is for life
imprisonment or death", it violates Article VIII, section
2, paragraph 4, of the Constitution of the Philippines
which provides that "the National Assembly may not
deprive the Supreme Court of its original jurisdiction
over all criminal cases in which the penalty imposed is
death or life imprisonment."

We think the petitioners are in error. This error arose

from failure to perceive the nature of courts martial and
the sources of the authority for their creation.
Courts martial are agencies of executive character, and
one of the authorities "for the ordering of courts martial
has been held to be attached to the constitutional
functions of the President as Commander in Chief,
independently of legislation." (Winthrop's Military Law
and Precedents, 2d Edition, p. 49.) Unlike courts of law,
they are not a portion of the judiciary. "The Supreme
Court of the United States referring to the provisions of
the Constitution authorizing Congress to provide for the
government of the army, excepting military offenses
from the civil jurisdiction, and making the President
Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide
for the trial and punishment of military and naval
offenses in the manner then and now practiced by
civilized nations, and that the power to do so is given
without any connection between it and the 3d Article of
the United States; indeed that the two powers are
entirely independent of each other."

Page 35 of 45
[G.R. No. 138570. October 10, 2000]
BAYAN et al, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, et al,
respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.
et al, petitioners, vs. HON. RONALDO B. ZAMORA, et
al, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., et al, petitioners, vs.
JOSEPH E. ESTRADA, et al, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES,
petitioners, vs. JOSEPH EJERCITO ESTRADA, et al,
respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, et al, petitioners, vs. THE
EXECUTIVE SECRETARY, et al, respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant
consolidated petitions for certiorari and prohibition are
issues relating to, and borne by, an agreement forged in
the turn of the last century between the Republic of the
Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United
States of America forged a Military Bases Agreement
which formalized, among others, the use of installations
in the Philippine territory by United States military
personnel. To further strengthen their defense and
security relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on August
30, 1951. Under the treaty, the parties agreed to respond
to any external armed attack on their territory, armed
forces, public vessels, and aircraft. [1]
In view of the impending expiration of the RP-US
Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of
the military bases agreement. On September 16, 1991,
the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which,
in effect, would have extended the presence of US
military bases in the Philippines. [2] With the expiration
of the RP-US Military Bases Agreement, the periodic
military exercises conducted between the two countries
were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the
United States of America continued pursuant to the
Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US
Defense Deputy Assistant Secretary for Asia Pacific
Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to
exchange notes on the complementing strategic interests
of the United States and the Philippines in the Asia-
Pacific region. Both sides discussed, among other things,
the possible elements of the Visiting Forces Agreement
(VFA for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in turn
resulted to a final series of conferences and negotiations
[3] that culminated in Manila on January 12 and 13,
1998. Thereafter, then President Fidel V. Ramos
approved the VFA, which was respectively signed by
public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada,
through respondent Secretary of Foreign Affairs, ratified
the VFA. [4]
On October 6, 1998, the President, acting through
respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, [5]
the Instrument of Ratification, the letter of the President
[6] and the VFA, for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn,
referred the VFA to its Committee on Foreign Relations,
chaired by Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were
held by the two Committees. [7]
On May 3, 1999, the Committees submitted Proposed
Senate Resolution No. 443 [8] recommending the
concurrence of the Senate to the VFA and the creation of
a Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443
was approved by the Senate, by a two-thirds (2/3) vote
[9] of its members. Senate Resolution No. 443 was then
re-numbered as Senate Resolution No. 18. [10]
On June 1, 1999, the VFA officially entered into force
after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador
Hubbard.
The VFA, which consists of a Preamble and nine (9)
Articles, provides for the mechanism for regulating the
circumstances and conditions under which US Armed
Forces and defense personnel may be present in the
Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel
means United States military and civilian personnel
temporarily in the Philippines in connection with
activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military
members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals
who are neither nationals of, nor ordinary residents in
the Philippines and who are employed by the United
States armed forces or who are accompanying the United
States armed forces, such as employees of the American
Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to
respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with
the spirit of this agreement, and, in particular, from
any political activity in the Philippines. The
Page 36 of 45
Government of the United States shall take all
measures within its authority to ensure that this is
done.
Article III
Entry and Departure
1. The Government of the Philippines shall
facilitate the admission of United States
personnel and their departure from the
Philippines in connection with activities covered
by this agreement.
2. United States military personnel shall be exempt
from passport and visa regulations upon entering
and departing the Philippines.
3. The following documents only, which shall be
presented on demand, shall be required in
respect of United States military personnel who
enter the Philippines:
(a) personal identity card issued by the
appropriate United States authority
showing full name, date of birth, rank or
grade and service number (if any), branch
of service and photograph;
(b) individual or collective document issued by
the appropriate United States authority,
authorizing the travel or visit and
identifying the individual or group as
United States military personnel; and
(c) the commanding officer of a military
aircraft or vessel shall present a
declaration of health, and when required
by the cognizant representative of the
Government of the Philippines, shall
conduct a quarantine inspection and will
certify that the aircraft or vessel is free
from quarantinable diseases. Any
quarantine inspection of United States
aircraft or United States vessels or cargoes
thereon shall be conducted by the United
States commanding officer in accordance
with the international health regulations as
promulgated by the World Health
Organization, and mutually agreed
procedures.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and
departure of the Philippines.
5. If the Government of the Philippines has
requested the removal of any United States
personnel from its territory, the United States
authorities shall be responsible for receiving the
person concerned within its own territory or
otherwise disposing of said person outside of
the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid,
without test or fee, a driving permit or license
issued by the appropriate United States authority
to United States personnel for the operation of
military or official vehicles.
2. Vehicles owned by the Government of the United
States need not be registered, but shall have
appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have
jurisdiction over United States personnel with
respect to offenses committed within the
Philippines and punishable under the law of
the Philippines.
(b) United States military authorities shall
have the right to exercise within the
Philippines all criminal and disciplinary
jurisdiction conferred on them by the military
law of the United States over United States
personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive
jurisdiction over United States personnel
with respect to offenses, including
offenses relating to the security of the
Philippines, punishable under the laws
of the Philippines, but not under the
laws of the United States.
(b) United States authorities exercise
exclusive jurisdiction over United States
personnel with respect to offenses,
including offenses relating to the
security of the United States, punishable
under the laws of the United States, but
not under the laws of the Philippines.
(c) For the purposes of this paragraph and
paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation
of any law relating to national
defense.
3. In cases where the right to exercise jurisdiction
is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the
primary right to exercise jurisdiction over all
offenses committed by United States
personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this
Article.
(b) United States military authorities shall
have the primary right to exercise jurisdiction
over United States personnel subject to the
military law of the United States in relation
to.
(1) offenses solely against the property or
security of the United States or offenses
solely against the property or person of
United States personnel; and
(2) offenses arising out of any act or
omission done in performance of official
duty.
(c) The authorities of either government may
request the authorities of the other
government to waive their primary right to
exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the
United States military authorities to maintain
good order and discipline among their forces,
Philippine authorities will, upon request by
the United States, waive their primary right to
exercise jurisdiction except in cases of
particular importance to the Philippines. If
the Government of the Philippines
determines that the case is of particular
importance, it shall communicate such
Page 37 of 45
 determination to the United States authorities
within twenty (20) days after the Philippine
authorities receive the United States request.
(e) When the United States military
commander determines that an offense
charged by authorities of the Philippines
against United states personnel arises out of
an act or omission done in the performance of
official duty, the commander will issue a
certificate setting forth such determination.
This certificate will be transmitted to the
appropriate authorities of the Philippines and
will constitute sufficient proof of
performance of official duty for the purposes
of paragraph 3(b)(2) of this Article. In those
cases where the Government of the
Philippines believes the circumstances of the
case require a review of the duty certificate,
United States military authorities and
Philippine authorities shall consult
immediately. Philippine authorities at the
highest levels may also present any
information bearing on its validity. United
States military authorities shall take full
account of the Philippine position. Where
appropriate, United States military authorities
will take disciplinary or other action against
offenders in official duty cases, and notify the
Government of the Philippines of the actions
taken.
(f) If the government having the primary
right does not exercise jurisdiction, it shall
notify the authorities of the other government
as soon as possible.
(g) The authorities of the Philippines and the
United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United
States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the
authorities of the Philippines and United States shall
assist each other in the arrest of United States personnel
in the Philippines and in handling them over to
authorities who are to exercise jurisdiction in accordance
with the provisions of this article.
5. United States military authorities shall promptly
notify Philippine authorities of the arrest or detention of
United States personnel who are subject of Philippine
primary or exclusive jurisdiction. Philippine authorities
shall promptly notify United States military authorities
of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over
whom the Philippines is to exercise jurisdiction shall
immediately reside with United States military
authorities, if they so request, from the commission of
the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal
notification by the Philippine authorities and without
delay, make such personnel available to those authorities
in time for any investigative or judicial proceedings
relating to the offense with which the person has been
charged in extraordinary cases, the Philippine
Government shall present its position to the United
States Government regarding custody, which the United
States Government shall take into full account. In the
event Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of
any obligations under this paragraph. The one-year
period will not include the time necessary to appeal.
Also, the one-year period will not include any time
during which scheduled trial procedures are delayed
because United States authorities, after timely
notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
7. Within the scope of their legal authority, United
States and Philippine authorities shall assist each other in
the carrying out of all necessary investigation into
offenses and shall cooperate in providing for the
attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper
cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in
accordance with the provisions of this Article and have
been acquitted or have been convicted and are serving,
or have served their sentence, or have had their sentence
remitted or suspended, or have been pardoned, they may
not be tried again for the same offense in the Philippines.
Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States
personnel for any violation of rules of discipline arising
from the act or omission which constituted an offense
for which they were tried by Philippine authorities.
9. When United States personnel are detained,
taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural
safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the
specific charge or charges made against them
and to have reasonable time to prepare a
defense;
(c) To be confronted with witnesses against
them and to cross examine such witnesses;
(d) To present evidence in their defense and
to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal
representation of their own choice on the
same basis as nationals of the Philippines;
(f) To have the service of a competent
interpreter; and
(g) To communicate promptly with and to
be visited regularly by United States
authorities, and to have such authorities
present at all judicial proceedings. These
proceedings shall be public unless the court,
in accordance with Philippine laws, excludes
persons who have no role in the proceedings.
10. The confinement or detention by Philippine
authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippine and
United States authorities. United States Personnel
serving sentences in the Philippines shall have the right
to visits and material assistance.
11. United States personnel shall be subject to trial only
in Philippine courts of ordinary jurisdiction, and shall
not be subject to the jurisdiction of Philippine military or
religious courts.
Page 38 of 45
 Article VI
Claims
1. Except for contractual arrangements, including United
States foreign military sales letters of offer and
acceptance and leases of military equipment, both
governments waive any and all claims against each other
for damage, loss or destruction to property of each others
armed forces or for death or injury to their military and
civilian personnel arising from activities to which this
agreement applies.
2. For claims against the United States, other than
contractual claims and those to which paragraph 1
applies, the United States Government, in accordance
with United States law regarding foreign claims, will
pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or
death, caused by acts or omissions of United States
personnel, or otherwise incident to the non-combat
activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials,
supplies, and other property imported into or acquired in
the Philippines by or on behalf of the United States
armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property
shall remain with the United States, which may remove
such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend
to any duty, tax, or other similar charges which would
otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines.
Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties
shall be subject to payment of such taxes, and duties and
prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal
effects, and other property for the personal use of United
States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar
charges during the period of their temporary stay in the
Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be
made upon prior approval of the appropriate Philippine
authorities including payment by the recipient of
applicable duties and taxes imposed in accordance with
the laws of the Philippines. The exportation of such
property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine
duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States
armed forces may enter the Philippines upon approval of
the Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of
vessels shall be in accordance with international custom
and practice governing such vessels, and such agreed
implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the
United States armed forces shall not be subject to the
payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and
harbor dues, while in the Philippines. Aircraft operated
by or for the United States armed forces shall observe
local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United
States solely on United States Government non-
commercial service shall not be subject to compulsory
pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on
which the parties have notified each other in
writing through the diplomatic channel that they
have completed their constitutional requirements
for entry into force. This agreement shall remain in
force until the expiration of 180 days from the date
on which either party gives the other party notice in
writing that it desires to terminate the agreement.
Via these consolidated [11] petitions for certiorari and
prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers -
assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in ratifying
the agreement.
We have simplified the issues raised by the petitioners
into the following:
I
Do petitioners have legal standing as concerned
citizens, taxpayers, or legislators to question the
constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section
21, Article VII or of Section 25, Article XVIII of
the Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
a. Are Philippine courts deprived of their
jurisdiction to hear and try offenses committed by US
military personnel?
b. Is the Supreme Court deprived of its jurisdiction
over offenses punishable by reclusion perpetua or
higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1,
Article III of the Constitution?
b. the Prohibition against nuclear weapons under
Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution
granting the exemption from taxes and duties for the
equipment, materials supplies and other properties
imported into or acquired in the Philippines by, or on
behalf, of the US Armed Forces?
Page 39 of 45
LOCUS STANDI
At the outset, respondents challenge petitioners standing
to sue, on the ground that the latter have not shown any
interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain
direct injury as a result of the operation of the VFA. [12]
Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental
importance which justifies their standing. [13]
A party bringing a suit challenging the constitutionality
of a law, act, or statute must show not only that the law
is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that
he suffers thereby in some indefinite way. He must show
that he 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. [14]
In the case before us, petitioners failed to show, to the
satisfaction of this Court, that they have sustained, or are
in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have
not established that the VFA involves the exercise by
Congress of its taxing or spending powers. [15] On this
point, it bears stressing that a taxpayers suit refers to a
case where the act complained of directly involves the
illegal disbursement of public funds derived from
taxation. [16] Thus, in Bugnay Const. & Development
Corp. vs. Laron [17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently
show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct
injury as a result of the enforcement of the questioned
statute or contract. It is not sufficient that he has merely
a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation
are involved in this case, and in the absence of any
allegation by petitioners that public funds are being
misspent or illegally expended, petitioners, as taxpayers,
have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito
Aquino and Joker Arroyo, as petitioners-legislators, do
not possess the requisite locus standi to maintain the
present suit. While this Court, in Phil. Constitution
Association vs. Hon. Salvador Enriquez, [18] sustained
the legal standing of a member of the Senate and the
House of Representatives to question the validity of a
presidential veto or a condition imposed on an item in an
appropriation bull, we cannot, at this instance, similarly
uphold petitioners standing as members of Congress, in
the absence of a clear showing of any direct injury to
their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative
power, such as the delegation of the power of Congress
to grant tax exemptions, are more apparent than real.
While it may be true that petitioners pointed to
provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to
sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the
Philippines (IBP) is stripped of standing in these cases.
As aptly observed by the Solicitor General, the IBP lacks
the legal capacity to bring this suit in the absence of a
board resolution from its Board of Governors
authorizing its National President to commence the
present action. [19]
Notwithstanding, in view of the paramount importance
and the constitutional significance of the issues raised in
the petitions, this Court, in the exercise of its sound
discretion, brushes aside the procedural barrier and takes
cognizance of the petitions, as we have done in the early
Emergency Powers Cases, [20] where we had occasion
to rule:
x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders
issued by President Quirino although they were
involving only an indirect and general interest shared in
common with the public. The Court dismissed the
objection that they were not proper parties and ruled that
transcendental importance to the public of these
cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of
procedure. We have since then applied the exception in
many other cases. (Association of Small Landowners in
the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of
Gonzales vs. COMELEC, [21] Daza vs. Singson, [22]
and Basco vs. Phil. Amusement and Gaming
Corporation, [23] where we emphatically held:
Considering however the importance to the public of the
case at bar, and in keeping with the Courts duty, under
the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves
within the limits of the Constitution and the laws and
that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure
and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs.
Guingona, Jr., [24] thisCourt ruled that in cases of
transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper
even where there is no direct injury to the party
claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of
separation of powers, which enjoins upon the
departments of the government a becoming respect for
each others acts, [25] this Court nevertheless resolves to
take cognizance of the instant petitions.
Page 40 of 45
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the
determination of which provision of the Constitution
applies, with regard to the exercise by the senate of its
constitutional power to concur with the VFA. Petitioners
argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence
of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21,
Article VII should apply inasmuch as the VFA is not a
basing arrangement but an agreement which involves
merely the temporary visits of United States personnel
engaged in joint military exercises.
The 1987 Philippine Constitution contains two
provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article
VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Section 21, Article VII deals with treatise or
international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the
general rule on treatise or international agreements and
applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to, extradition or
tax treatise or those economic in nature. All treaties or
international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of
the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in
the Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render
compliance with the constitutional requirements and to
consider the agreement binding on the Philippines.
Section 25, Article XVIII further requires that foreign
military bases, troops, or facilities may be allowed in the
Philippines only by virtue of a treaty duly concurred in
by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required
by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground. These constitutional
provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character.
In particular, Section 21 opens with the clause No treaty
x x x, and Section 25 contains the phrase shall not be
allowed. Additionally, in both instances, the concurrence
of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred the VFA
to the Senate under Section 21, Article VII, and that the
Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether
under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the
concurrence of the Senate is mandatory to comply with
the strict constitutional requirements.
On the whole, the VFA is an agreement which defines
the treatment of United States troops and personnel
visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further
defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however,
the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole
purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be
further discussed hereunder.
It is a finely-imbedded principle in statutory construction
that a special provision or law prevails over a general
one. Lex specialis derogat generali. Thus, where there is
in the same statute a particular enactment and also a
general one which, in its most comprehensive sense,
would include what is embraced in the former, the
particular enactment must be operative, and the general
enactment must be taken to affect only such cases within
its general language which are not within the provision
of the particular enactment. [26]
In Leveriza vs. Intermediate Appellate Court, [27] we
enunciated:
x x x that another basic principle of statutory
construction mandates that general legislation must give
way to a special legislation on the same subject, and
generally be so interpreted as to embrace only cases in
which the special provisions are not applicable (Sto.
Domingo vs. de los Angeles, 96 SCRA 139), that a
specific statute prevails over a general statute (De Jesus
vs. People, 120 SCRA 760) and that where two statutes
are of equal theoretical application to a particular case,
the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Page 41 of 45
Moreover, it is specious to argue that Section 25, Article
XVIII is inapplicable to mere transient agreements for
the reason that there is no permanent placing of structure
for the establishment of a military base. On this score,
the Constitution makes no distinction between transient
and permanent. Certainly, we find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to
be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no
distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire
debemos.
In like manner, we do not subscribe to the argument that
Section 25, Article XVIII is not controlling since no
foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. Notably, a perusal of
said constitutional provision reveals that the proscription
covers foreign military bases, troops, or facilities. Stated
differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being
established. The clause does not refer to foreign military
bases, troops, or facilities collectively but treats them as
separate and independent subjects. The use of comma
and the disjunctive word or clearly signifies
disassociation and independence of one thing from the
others included in the enumeration, [28] such that, the
provision contemplates three different situations - a
military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities
- any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter,
as manifested during the deliberations of the 1986
Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or
two to Commissioner Bernas.
This formulation speaks of three things: foreign military
bases, troops or facilities. My first question is: If the
country does enter into such kind of a treaty, must it
cover the three-bases, troops or facilities-or could the
treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one.
Whether it covers only one or it covers three, the
requirement will be the same.
MR. MAAMBONG. In other words, the Philippine
government can enter into a treaty covering not bases
but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our
imagination a little bit more, we will find some. We just
want to cover everything. [29] (Underscoring Supplied)
Moreover, military bases established within the territory
of another state is no longer viable because of the
alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as
well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their
home country. These military warships are actually used
as substitutes for a land-home base not only of military
aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of
whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to
the VFA.
Section 25, Article XVIII disallows foreign military
bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must
be under a treaty; (b) the treaty must be duly concurred
in by the Senate and, when so required by congress,
ratified by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty by
the other contracting state.
There is no dispute as to the presence of the first two
requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution,
whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes
cast in a national referendum being unnecessary since
Congress has not required it.
As to the matter of voting, Section 21, Article VII
particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred
in by at least two-thirds of all the members of the
Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be duly concurred in by
the Senate.
Applying the foregoing constitutional provisions, a two-
thirds vote of all the members of the Senate is clearly
required so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is
true that Section 25, Article XVIII requires, among other
things, that the treaty-the VFA, in the instant case-be
duly concurred in by the Senate, it is very true however
that said provision must be related and viewed in light of
the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be
made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be
treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25,
Article XVIII must be construed in relation to the
provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means
that at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty-the VFA in the
instant case.
Page 42 of 45
Under these circumstances, the charter provides that the
Senate shall be composed of twenty-four (24) Senators.
[30] Without a tinge of doubt, two-thirds (2/3) of this
figure, or not less than sixteen (16) members, favorably
acting on the proposal is an unquestionable compliance
with the requisite number of votes mentioned in Section
21 of Article VII. The fact that there were actually
twenty-three (23) incumbent Senators at the time the
voting was made, [31] will not alter in any significant
way the circumstance that more than two-thirds of the
members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on
this figure of actual members (23). In this regard, the
fundamental law is clear that two-thirds of the 24
Senators, or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional mandate
of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed
in Section 25, Article XVIII are present, we shall now
pass upon and delve on the requirement that the VFA
should be recognized as a treaty by the United States of
America.
Petitioners content that the phrase recognized as a treaty,
embodied in section 25, Article XVIII, means that the
VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process,
and that it should not be considered merely an executive
agreement by the United States.
In opposition, respondents argue that the letter of United
States Ambassador Hubbard stating that the VFA is
binding on the United States Government is conclusive,
on the point that the VFA is recognized as a treaty by the
United States of America. According to respondents, the
VFA, to be binding, must only be accepted as a treaty by
the United States.
This Court is of the firm view that the phrase recognized
as a treaty means that the other contracting party accepts
or acknowledges the agreement as a treaty. [32] To
require the other contracting state, the United States of
America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its
Constitution, [33] is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in
the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which
case the significance thus attached to them prevails. Its
language should be understood in the sense they have in
common use. [34]
Moreover, it is inconsequential whether the United
States treats the VFA only as an executive agreement
because, under international law, an executive agreement
is as binding as a treaty. [35] To be sure, as long as the
VFA possesses the elements of an agreement under
international law, the said agreement is to be taken
equally as a treaty.
A treaty, as defined by the Vienna Convention on the
Law of Treaties, is an international instrument concluded
between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments, and
whatever its particular designation. [36] There are many
other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis
d arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international
agreements included under the general term treaty have
little or no legal significance. Certain terms are useful,
but they furnish little more than mere description. [37]
Article 2(2) of the Vienna Convention provides that the
provisions of paragraph 1 regarding the use of terms in
the present Convention are without prejudice to the use
of those terms, or to the meanings which may be given
to them in the internal law of the State.
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries have remained within their powers. [38]
International law continues to make no distinction
between treaties and executive agreements: they are
equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding
effect of executive agreements even without the
concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea Trading,
[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such
subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements
and the settlement of claims. The validity of these has
never been seriously questioned by our courts.
xxx xxx xxx
Furthermore, the United States Supreme Court has
expressly recognized the validity and constitutionality of
executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink,
315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d.
288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [revised Edition], Vol. 2, pp.
1405, 1416-1418; willoughby on the U.S. Constitution
Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission
which drafted the 1987 Constitution is enlightening and
highly-instructive:
MR. MAAMBONG. Of course it goes without saying
that as far as ratification of the other state is concerned,
that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they
say. If they say that we have done everything to make it
a treaty, then as far as we are concerned, we will accept
it as a treaty. [41]
Page 43 of 45

The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated
that the United States government has fully committed to
living up to the terms of the VFA. [42] For as long as the
united States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with
its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the Senate
should be taken as a clear an unequivocal expression of
our nations consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the government,
as the case may be, through which the formal acceptance
of the treaty is proclaimed. [43] A State may provide in
its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is
expressed by ratification when: (a) the treaty provides
for such ratification, (b) it is otherwise established that
the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed
the treaty subject to ratification, or (d) the intention of
the State to sign the treaty subject to ratification appears
from the full powers of its representative, or was
expressed during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the
ratification. [45]
With the ratification of the VFA, which is equivalent to
final acceptance, and with the exchange of notes
between the Philippines and the United States of
America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution,[46] declares 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 peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the Philippines
agrees to be bound by generally accepted rules for the
conduct of its international relations. While the
international obligation devolves upon the state and not
upon any particular branch, institution, or individual
member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or
subdivision of its government or any official thereof. As
an integral part of the community of nations, we are
responsible to assure that our government, Constitution
and laws will carry out our international obligation. [47]
Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our
obligations, duties and responsibilities under
international law.
Beyond this, Article 13 of the Declaration of Rights and
Duties of States adopted by the International Law
Commission in 1949 provides: Every State has the duty
to carry out in good faith its obligations arising from
treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this duty. [48]
Equally important is Article 26 of the convention which
provides that Every treaty in force is binding upon the
parties to it and must be performed by them in good
faith. This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of
positive international law, supported by the
jurisprudence of international tribunals. [49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is
heavily faulted for exercising a power and performing a
task conferred upon him by the Constitution-the power
to enter into and ratify treaties. Through the expediency
of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on
the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the
provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion
implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or,
when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion
of positive duty enjoined or to act at all in contemplation
of law. [50]
By constitutional fiat and by the intrinsic nature of his
office, the President, as head of State, is the sole organ
and authority in the external affairs of the country. In
many ways, the President is the chief architect of the
nations foreign policy; his dominance in the field of
foreign relations is (then) conceded. [51] Wielding vast
powers an influence, his conduct in the external affairs
of the nation, as Jefferson describes, is executive
altogether." [52]
As regards the power to enter into treaties or
international agreements, the Constitution vests the same
in the President, subject only to the concurrence of at
least two-thirds vote of all the members of the Senate. In
this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of
his vast executive and diplomatic powers granted him no
less than by the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it. [53]
Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification
and entering into a treaty and those necessary or
incidental to the exercise of such principal acts -
squarely fall within the sphere of his constitutional
powers and thus, may not be validly struck down, much
less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
Page 44 of 45
It is the Courts considered view that the President, in
ratifying the VFA and in submitting the same to the
Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution. It
is of no moment that the President, in the exercise of his
wide latitude of discretion and in the honest belief that
the VFA falls within the ambit of Section 21, Article VII
of the Constitution, referred the VFA to the Senate for
concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA
and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied
in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a
prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section
21 of Article VII, instead of Section 25 of Article XVIII
of the Constitution, still, the President may not be
faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross,
and capricious manner.
maturity and growth. True enough, rudimentary is the
principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the
courts to inquire.
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court- as the
final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to
conduct an incursion and meddle with such affairs
purely executive and legislative in character and nature.
For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within
which each of the three political branches of government
may exercise the powers exclusively and essentially
conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions,
the instant petitions are hereby DISMISSED.
SO ORDERED.

For while it is conceded that Article VIII, Section 1, of

the Constitution has broadened the scope of judicial
inquiry into areas normally left to the political
departments to decide, such as those relating to national
security, it has not altogether done away with political
questions such as those which arise in the field of
foreign relations. [54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to)
check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In
the absence of a showing (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no occasion
for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error. [55]

As to the power to concur with treaties, the constitution

lodges the same with the Senate alone. Thus, once the
Senate [56] performs that power, or exercises its
prerogative within the boundaries prescribed by the
Constitution, the concurrence cannot, in like manner, be
viewed to constitute an abuse of power, much less grave
abuse thereof. Corollarily, the Senate, in the exercise of
its discretion and acting within the limits of such power,
may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less
than the fundamental law.

For the role of the Senate in relation to treaties is

essentially legislative in character; [57] the Senate, as an
independent body possessed of its own erudite mind, has
the prerogative to either accept or reject the proposed
agreement, and whatever action it takes in the exercise
of its wide latitude of discretion, pertains to the wisdom
rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping
the principles of separation of powers and of checks and
balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a
democratic government such as ours. The Constitution
thus animates, through this treaty-concurring power of
the Senate, a healthy system of checks and balances
indispensable toward our nations pursuit of political
Page 45 of 45