Republic of the Philippines

SUPREME COURT
Manila
G.R. No. 171396

May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H.

HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409

May 3, 2006

NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485

May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.

CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV
S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO
GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP,Respondents.
x-------------------------------------x
G.R. No. 171483

May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.

LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN,Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400

May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489

May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,

JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III,
MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR
GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF,Respondents.
x-------------------------------------x
G.R. No. 171424

May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of
the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He
said: "In cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized,
the dispossessed and the weak." Laws and actions that restrict fundamental rights
come to the courts "with a heavy presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O.
No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion.
Petitioners contend that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of liberty,
without which, law becomes tyranny, with the degree of law, without which, liberty
becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by
virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists the
historical enemies of the democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front,
to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing
governance including hindering the growth of the economy and sabotaging the
peoples confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute aclear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists - the historical enemies
of the democratic Philippine State and who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
peoples confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;

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

preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me under the Constitution as President of the Republic of the Philippines,
and Commander-in-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary
and appropriate actions and measures to suppress and prevent acts of
terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017.
She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring
a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006,
which were issued on the basis of Proclamation No. 1017, the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), were directed to
maintain law and order throughout the Philippines, prevent and suppress all form of
lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled
the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy
among some military officers, leftist insurgents of the New Peoples Army (NPA), and
some members of the political opposition in a plot to unseat or assassinate President

Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was
no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out
the armed forces. He emphasized that none of the petitioners has shown that PP
1017 was without factual bases. While he explained that it is not respondents task to
state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
Taguig City. In a public statement, they vowed to remain defiant and to elude arrest
at all costs. They called upon the people to "show and proclaim our displeasure at
the sham regime. Let us demonstrate our disgust, not only by going to the streets in
protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle
I " which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected
targets including some cabinet members and President Arroyo herself.6 Upon the
advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the National
Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and
copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalos D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon

also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Armys elite Scout Ranger. Lim said "it was all systems go for the
planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers
because they too, were breaking the chain of command to join the forces foist to
unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances with its
members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared:
"The Communist Party and revolutionary movement and the entire people look
forward to the possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it
will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the
military and police are growing rapidly, hastened by the economic difficulties suffered
by the families of AFP officers and enlisted personnel who undertake counterinsurgency operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I;
and revoked the permits to hold rallies issued earlier by the local governments.
Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents
mind were organized for purposes of destabilization, are cancelled.Presidential Chief
of Staff Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from
various parts of Metro Manila with the intention of converging at the EDSA shrine.
Those who were already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up
an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground
for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president
of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures, and mock-ups of the
Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside
the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a strong presence, to tell media outlets not to connive or do anything that
would help the rebels in bringing down this government." The PNP warned that it
would take over any media organization that would not follow "standards set by the
government during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio

networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltrans lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were
told they could not be admitted because of PP 1017 and G.O. No. 5. Two members
were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club
in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5" decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo,et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents.
Three (3) of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech
and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of

"censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
"usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her
discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto
President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of the
people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of
Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c)Section 2319 of Article VI,
and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an "arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued
that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017
and G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution." In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,petitioners in G.R.
Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et
al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to
free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:

A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept rests on
the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national government.
x x x If the government consciously or unconsciously oversteps these
limitations there must be some authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial
review.22
But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy;second, petitioners have
to raise a question of constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.

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

claims susceptible of judicial resolution. It is "definite and concrete, touching the legal
relations of parties having adverse legal interest;" a real and substantial controversy
admitting of specific relief.25 The Solicitor General refutes the existence of such
actual case or controversy, contending that the present petitions were rendered
"moot and academic" by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,26 so that a declaration thereon would be of no practical
use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on
ground of mootness.29
The Court holds that President Arroyos issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the Constitution;31 second, the
exceptional character of the situation and the paramount public interest is
involved;32third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;33 and fourth, the case is
capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Courts assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP
1017 and G.O. No. 5 violates the Constitution. There is no question that the issues
being raised affect the publics interest, involving as they do the peoples basic rights
to freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It
has the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents contested actions are capable
of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.36 However, they failed to take into account the Chief Justices very
statement that an otherwise "moot" case may still be decided "provided the party
raising it in a proper case has been and/or continues to be prejudiced or damaged as
a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question."37 In private suits, standing is governed by the "real-parties-in interest" rule
as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended.
It provides that "every action must be prosecuted or defended in the name of
the real party in interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit."38 Succinctly put, the plaintiffs standing is based
on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a "public right" in assailing an allegedly illegal official action, does so as
a representative of the general public. He may be a person who is affected no
differently from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,39 where it
was held that the plaintiff in a taxpayers suit is in a different category from the
plaintiff in a citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument
of the public concern. As held by the New York Supreme Court in People ex rel
Case v. Collins:40 "In matter of mere public right, howeverthe people are the
real partiesIt is at least the right, if not the duty, of every citizen to interfere
and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayers suits, Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be
denied."
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court
laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
inTileston v. Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the
public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it
held that the person who impugns the validity of a statute must have "a personal
and substantial interest in the case such that he has sustained, or will sustain

direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers Association v.
De la Fuente,46Pascual v. Secretary of Public Works47 and Anti-Chinese League of
the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass
upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to
show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held
that "given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to prosper
despite the lack of direct injury to the parties seeking judicial review" of
the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of Congress taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the validity
of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
citizens cases involving constitutional issues. It held that "there must be a showing
that the citizen personally suffered some actual or threatened injury arising from the
alleged illegal official act."
In Lacson v.
Perez
,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP),
is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from
"illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are

used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public right, it
is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies following
the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege
any direct or potential injury which the IBP as an institution or its members may
suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5.
In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry.
However, in view of the transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public funds.
The fact that she is a former Senator is of no consequence. She can no longer sue
as a legislator on the allegation that her prerogatives as a lawmaker have been
impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will
not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental importance of the
issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal
tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the "transcendental

importance" doctrine, a relaxation of the standing requirements for the petitioners in

the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, 67 may
not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains
accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from the
indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile
era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The
tug-of-war always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government."75Barcelon and Montenegro were
in unison in declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency. From
the principle of separation of powers, it shifted the focus to the system of
checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court ofLansang was divided
in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of
whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrilewhich greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in
times of war or national emergency, the President must be given absolute

control for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the Presidents "calling-out" power as a discretionary power solely vested
in his wisdom, it stressed that "this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of discretion."This ruling
is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to determine
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden territory,
to wit, the discretion of the political departments of the government.81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than to
satisfy the Court not that the Presidents decision is correct," but that "the President
did not act arbitrarily." Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor
Generals Consolidated Comment and Memorandum shows a detailed narration of
the events leading to the issuance of PP 1017, with supporting reports forming part
of the records. Mentioned are the escape of the Magdalo Group, their audacious
threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There
was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary allegations, the
Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected
to simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.

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

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times
of emergency. A glimpse at the various political theories relating to this subject
provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to
the nation, positive law enacted by the legislature might be inadequate or even a
fatal obstacle to the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act according to discretion
for the public good, without the proscription of the law and sometimes even
against it."84 But Locke recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted
defeat, suggesting that"the people have no other remedy in this, as in all other
cases where they have no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render it
impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the peoples first intention is that the
State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he
relied upon a tenure of office of prescribed duration to avoid perpetuation of the
dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am
far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship."88
Nicollo Machiavellis view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this chasm in democratic
political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra

constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they
will in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.89
Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response
to emergency by constitutional democracies, have employed the doctrine of
constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism
should not be used as a means for the defense of liberal institutions," provided
it "serves to protect established institutions from the danger of permanent
injury in a period of temporary emergency and is followed by a prompt return
to the previous forms of political life."92 He recognized the two (2) key elements of
the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the
same time "imposing limitation upon that power."93 Watkins placed his real faith
in a scheme of constitutional dictatorship. These are the conditions of success of
such a dictatorship: "The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in characterFinal
authority to determine the need for dictatorship in any given case must never
rest with the dictator himself"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a
problem of concentrating power in a government where power has consciously
been divided to cope with situations of unprecedented magnitude and gravity.
There must be a broad grant of powers, subject to equally strong limitations as to
who shall exercise such powers, when, for how long, and to what end." 96 Friedrich,
too, offered criteria for judging the adequacy of any of scheme of emergency powers,
to wit: "The emergency executive must be appointed by constitutional means
i.e., he must be legitimate; he should not enjoy power to determine the
existence of an emergency; emergency powers should be exercised under a
strict time limitation; and last, the objective of emergency action must be the
defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States, reverted
to a description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency.98 Like Watkins and Friedrich, he stated a
priori the conditions of success of the "constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship

should be initiated unless it is necessary or even indispensable to the
preservation of the State and its constitutional order
2) the decision to institute a constitutional dictatorship should never be in
the hands of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship without making
specific provisions for its termination
4) all uses of emergency powers and all readjustments in the organization
of the government should be effected in pursuit of constitutional or legal
requirements
5) no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of
the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect
7) The dictatorship should be carried on by persons representative of every
part of the citizenry interested in the defense of the existing constitutional
order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to
institute one should never be in the hands of the man or men who constitute
the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the
crisis for which it was instituted
11) the termination of the crisis must be followed by a complete return as
possible to the political and governmental conditions existing prior to the
initiation of the constitutional dictatorship99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies surrender
the control of government to an authoritarian ruler in time of grave danger to
the nation is not based upon sound constitutional theory." To appraise
emergency power in terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether the term "dictator" is

used in its normal sense (as applied to authoritarian rulers) or is employed to

embrace all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of suspension of
the processes of constitutionalism. Thus, they favored instead the "concept of
constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily
exclude some indeterminate limitations upon the substantive powers of government,
full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And
in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government but, but
rather in the limiting of it; between which there is a great and very significant
difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two fundamental
correlative elements of constitutionalism for which all lovers of liberty must
yet fight are the legal limits to arbitrary power and a complete political
responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above political
theorists - from Locks "theory of prerogative," to Watkins doctrine of "constitutional
dictatorship" and, eventually, to McIlwains "principle of constitutionalism" --ultimately aim to solve one real problem in emergency governance, i.e., that of
allotting increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice Jacksons
"balanced power structure."102 Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court, respectively.
Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check
upon the other. This system does not weaken the President, it just limits his power,
using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth."
They claim that its enforcement encroached on both unprotected and protected
rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the
citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes infree speech cases, also known under the
American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,104the US Supreme Court
held that "we have not recognized an overbreadth doctrine outside the limited
context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law
that "reflects legitimate state interest in maintaining comprehensive control over
harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence,
insurrection and rebellion are considered "harmful" and "constitutionally unprotected
conduct." InBroadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly be
held void on its face and when such summary action is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is
an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine,"
to be used "sparingly and only as a last resort," and is "generally
disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects
of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad laws "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its
actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of
the controversy, the impact on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not
even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which
holds that "a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application."110 It is subject
to the same principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt
to show that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and application of
PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions,
thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such proclamation or suspension for
a period to be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers.
From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the
only criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress
lawless violence, invasion or rebellion." Are these conditions present in the
instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast
intelligence network, she is in the best position to determine the actual condition of
the country.
Under the calling-out power, the President may summon the armed forces to aid him
in suppressing lawless violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the Presidents calling-out power is
considered illegal or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the Presidents
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyos authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the operation
of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyos declaration of a "state of rebellion" was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section

4 cited above. Such declaration, in the words ofSanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17,
Article XII, a provision on the States extraordinary power to take over privatelyowned public utility and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should
not be resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose of enabling
him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration
of Martial Law can be done. Its use for any other purpose is a perversion of its nature
and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.

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

Martial Law. It is merely an exercise of President Arroyos calling-out power for
the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws
be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied
in existing laws. He sees to it that all laws are enforced by the officials and
employees of his department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he will, among others,
"execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed
forces of the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,
Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017
is unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power
to enact laws in Congress. They assail the clause "to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction."
\
Petitioners contention is understandable. A reading of PP 1017 operative clause
shows that it was lifted120 from Former President Marcos Proclamation No. 1081,
which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1
of the Constitution under martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the Philippines, to maintain
law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power.
Its enabling clause states: "to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017 issued by

President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular officer
or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all or
some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution. 121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate "decrees." Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that "[t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state

of emergency can justify President Arroyos exercise of legislative power by issuing

decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect
to "laws," she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all
the laws and to all decrees x x x" but also to act pursuant to the provision of Section
17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public utility or
business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention.122 In effect at the time of
its approval was President Marcos Letter of Instruction No. 2 dated September 22,
1972 instructing the Secretary of National Defense to take over "the management,
control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the Government of its effort to
contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that

President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment
on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents authority to declare "a state of
national emergency" and toexercise emergency powers. To the first, as elucidated
by the Court, Section 18, Article VII grants the President such power, hence, no
legitimate constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence
of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not
only to war but also to "other national emergency." If the intention of the Framers
of our Constitution was to withhold from the President the authority to declare a
"state of national emergency" pursuant to Section 18, Article VII (calling-out power)
and grant it to Congress (like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not intend that Congress
should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly
declare the existence of a state of national emergency even in the absence of a
Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter. This
requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of a
constitution which relate to the same subject matter will be construed together and
considered in the light of each other.123 Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national emergencies, they must
be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or

practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just
another facet of the emergency powers generally reposed upon Congress. Thus,
when Section 17 states that the "the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest,"
it refers to Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet &
Tube Co. et al. v. Sawyer,125held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military
power as Commander-in-Chief of the Armed Forces. The Government attempts to
do so by citing a number of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here.Even though "theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping production.
This is a job for the nations lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the Presidents power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither

silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that "All legislative Powers
herein granted shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section
17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar
occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
and perception.127 Emergencies, as perceived by legislature or executive in the
United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.131This is evident in the
Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency"
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or business affected with public
interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about
strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able
to convene and, therefore, unable to delegate to the President the power to take
over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through
which extraordinary measures are exercised, remains in Congress even in times of
crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of
the separation of powers, the fact remains that the Constitution has set up this form
of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is,
under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting laws been surrendered to
another department unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional government, in times
of extreme perils more than in normal circumstances the various branches,
executive, legislative, and judicial, given the ability to act, are called upon to perform
the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her
during the emergency to temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest without authority from
Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privatelyowned public utility or business affected with public interest. The President cannot
decide whether exceptional circumstances exist warranting the take over of privatelyowned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security,
is that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are

curtailed and trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
2006, they were arrested without warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of
the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives "raided and ransacked
without warrant" their office. Three policemen were assigned to guard their office as
a possible "source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that
they resulted from theimplementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general,does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused135 and may afford an opportunity for
abuse in the manner of application.136 The validity of a statute or ordinance is to
be determined from its general purpose and its efficiency to accomplish the end
desired,not from its effects in a particular case.137 PP 1017 is merely an
invocation of the Presidents calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021.
But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that
its implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its
exertion.138This is logical. Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal
Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules
issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations create
no relation except between the official who issues them and the official who receives
them.139 They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary
and appropriate actions and measures to suppress and prevent acts of
terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well.
The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism"
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of
states "sponsoring terrorism" and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of
force as the most recent by the United States against Iraq consists in the absence
of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying "One countrys terrorist is another
countrys freedom fighter." The apparent contradiction or lack of consistency in the
use of the term "terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time,
but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
who associate "terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe in
the concept of the legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference
to the contradicting categorization of organizations and movements such as
Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims the Kashmiri resistance groups who
are terrorists in the perception of India, liberation fighters in that of Pakistan the
earlier Contras in Nicaragua freedom fighters for the United States, terrorists for
the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become
the Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the
Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the definition
of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector
of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of sovereign
states that determine in each and every instance how a particular armed movement
(i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy.
A "policy of double standards" on this vital issue of international affairs has been the
unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states
and not of peoples, in spite of the emphasis in the Preamble to the United Nations
Charter! has become even more serious in the present global power constellation:
one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression
on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the

act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5.
Obviously, this is abuse and oppression on their part. It must be remembered that an
act can only be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the Philippines x x x
by force, violence, terrorism, x x x shall be punished byreclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define "acts of terrorism." Since there is no law defining "acts
of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion
to determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5. These acts go
far beyond the calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the "acts of
terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what arenecessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and
the persons or things to be seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and police
must stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a criminal

suspect; fourth,he was treated brusquely by policemen who "held his head and tried
to push him" inside an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was
their observation that some rallyists were wearing t-shirts with the invective "Oust
Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on
the ground of insufficiency of evidence. He noted that petitioner David was not
wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in a

public place, a permit for the use of such place, and not for the assembly itself, may
be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime,
neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges
of inciting to seditionand violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers
conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be
made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly are not to be preserved,
is not as to the auspices under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are engaged
in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws.But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the
basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMUet al. (G.R. No. 171483) unwarranted. Apparently,
their dispersal was done merely on the basis of Malacaangs directive canceling all
permits previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that "freedom
of assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may
deny the citizens right to exercise it. Indeed, respondents failed to show or convince
the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits.150 The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a persons right is
restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of

speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, theDaily
Tribunes offices were searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at about 1:00 o
clock in the morning of February 25, 2006; fourth,the search was conducted in the
absence of any official of the Daily Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a
strong presence, to tell media outlets not to connive or do anything that
would help the rebels in bringing down this government." Director General
Lomibao further stated that "if they do not follow the standards and the
standards are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
we will recommend a takeover." National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the national
security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant must
direct that it be served in the daytime, unless the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners freedom of the press. The best gauge
of a free and democratic society rests in the degree of freedom enjoyed by its media.
In the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing offices
of the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework

where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential to the
vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search
of the Tribunes offices and the seizure of its materials for publication and other
papers are illegal; and that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that
the policemen were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 oclock in the
morning and without any search warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and
it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to
say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of
the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and "should result in no constitutional or statutory breaches if applied
according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is
limited to the calling out by the President of the military to prevent or suppress
lawless violence, invasion or rebellion. When in implementing its provisions,
pursuant to G.O. No. 5, the military and the police committed acts which violate the

citizens rights under the Constitution, this Court has to declare such acts
unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening
event would have normally rendered this case moot and academic. However, while
PP 1017 was still operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not
again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and
violent." Consequently, the transcendental issues raised by the parties should not be
"evaded;" they must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions
giving the President express or implied power (1) to issue decrees; (2) to direct the
AFP to enforce obedience to all lawseven those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of
the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to
carry out the provisions of PP 1017. Significantly, it also provides a valid standard
that the military and the police should take only the "necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said
G.O. While "terrorism" has been denounced generally in media, no law has been
enacted to guide the military, and eventually the courts, to determine the limits of the
AFPs authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald
Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and
NAFLU-KMU members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not
been individually identified and given their day in court. The civil complaints or
causes of action and/or relevant criminal Informations have not been presented
before this Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive
civil rights are ends in themselves. How to give the military the power it needs
to protect the Republic without unnecessarily trampling individual rights is
one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they
should not be arbitrary as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria MacapagalArroyo on the AFP to prevent or suppress lawless violence. However, the
provisions of PP 1017 commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take
over privately-owned public utility or business affected with public interest without
prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate
actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129093

August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and

HON. CALIXTO CATAQUIZ,petitioners,
vs.
HON. FRANCISCO DIZON PAO and TONY CALVENTO, respondents.
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of the
decision 1 dated February 10, 1997 of the Regional Trial Court of San Pedro,
Laguna, Branch 93, enjoining petitioners from implementing or
enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang Panlalawigan of
Laguna and its subsequent Order 2 dated April 21, 1997 denying petitioners' motion
for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the
Philippine Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the
operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna,
for a mayor's permit to open the lotto outlet. This was denied by Mayor Cataquiz in a
letter dated February 19, 1996. The ground for said denial was an ordinance passed
by the Sangguniang Panlalawigan of Laguna entitled Kapasiyahan Blg. 508, T.
1995 which was issued on September 18, 1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING"
LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't
higit sa mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at
Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano
at buong pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano
mang uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;

IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang

pinuno ng Philippine National Police (PNP) Col. [illegible] na mahigpit na pagibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan
ng Laguna lalo na ang "Jueteng".3
As a result of this resolution of denial, respondent Calvento filed a complaint for
declaratory relief with prayer for preliminary injunction and temporary restraining
order. In the said complaint, respondent Calvento asked the Regional Trial Court of
San Pedro Laguna, Branch 93, for the following reliefs: (1) a preliminary injunction or
temporary restraining order, ordering the defendants to refrain from implementing or
enforcing Kapasiyahan Blg. 508, T. 1995; (2) an order requiring Hon. Municipal
Mayor Calixto R Cataquiz to issue a business permit for the operation of a lotto outlet;
and (3) an order annulling or declaring as invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Pao, promulgated
his decision enjoining the petitioners from implementing or enforcing resolution
or Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and
representatives are hereby enjoined from implementing or enforcing
resolution or kapasiyahan blg. 508, T. 1995 of the Sangguniang Panlalawigan
ng Laguna prohibiting the operation of the lotto in the province of Laguna.
SO ORDERED.4
Petitioners filed a motion for reconsideration which was subsequently denied in an
Order dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr.
and the Sangguniang Panlalawigan of Laguna, thru counsel, with the
opposition filed by plaintiff's counsel and the comment thereto filed by counsel
for the defendants which were duly noted, the Court hereby denies the motion
for lack of merit.
SO ORDERED.5
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE
SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE
OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED
BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR

PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR

OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL
GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED
SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the
Provincial Government of Laguna of its vehement objection to the operation of lotto
and all forms of gambling. It is likewise a valid exercise of the provincial
government's police power under the General Welfare Clause of Republic Act 7160,
otherwise known as the Local Government Code of 1991.6 They also maintain that
respondent's lotto operation is illegal because no prior consultations and approval by
the local government were sought before it was implemented contrary to the express
provisions of Sections 2 (c) and 27 of R.A. 7160.7
For his part, respondent Calvento argues that the questioned resolution is, in effect,
a curtailment of the power of the state since in this case the national legislature itself
had already declared lotto as legal and permitted its operations around the
country.8 As for the allegation that no prior consultations and approval were sought
from the sangguniang panlalawigan of Laguna, respondent Calvento contends this is
not mandatory since such a requirement is merely stated as a declaration of policy
and not a self-executing provision of the Local Government Code of 1991.9 He also
states that his operation of the lotto system is legal because of the authority given to
him by the PCSO, which in turn had been granted a franchise to operate the lotto by
Congress.10
The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government.11 He argues that this is based on the
principle that ordinances should not contravene statutes as municipal governments
are merely agents of the national government. The local councils exercise only
delegated legislative powers which have been conferred on them by Congress. This
being the case, these councils, as delegates, cannot be superior to the principal or
exercise powers higher than those of the latter. The OSG also adds that the question
of whether gambling should be permitted is for Congress to determine, taking into
account national and local interests. Since Congress has allowed the PCSO to
operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative
grant of authority, the province's Sangguniang Panlalawigan cannot nullify the
exercise of said authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508,
T. 1995 of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's
permit based thereon are valid; and (2) whether prior consultations and approval by
the concerned Sanggunian are needed before a lotto system can be operated in a
given local government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a
mayor's permit for the operation of a lotto outlet in favor of private respondent.
According to the mayor, he based his decision on an existing ordinance prohibiting
the operation of lotto in the province of Laguna. The ordinance, however, merely
states the "objection" of the council to the said game. It is but a mere policy

statement on the part of the local council, which is not self-executing. Nor could it
serve as a valid ground to prohibit the operation of the lotto system in the province of
Laguna. Even petitioners admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear.
The Resolution is a policy declaration of the Provincial Government of Laguna
of its vehement opposition and/or objection to the operation of and/or all forms
of gambling including the Lotto operation in the Province of Laguna. 12
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views
which may be contrary to that of the national government's. However, this freedom to
exercise contrary views does not mean that local governments may actually enact
ordinances that go against laws duly enacted by Congress. Given this premise, the
assailed resolution in this case could not and should not be interpreted as a measure
or ordinance prohibiting the operation of lotto.
The game of lotto is a game of chance duly authorized by the national government
through an Act of Congress. Republic Act 1169, as amended by Batas Pambansa
Blg. 42, is the law which grants a franchise to the PCSO and allows it to operate the
lotteries. The pertinent provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. The Philippine
Charity Sweepstakes Office, hereinafter designated the Office, shall be the
principal government agency for raising and providing for funds for health
programs, medical assistance and services and charities of national character,
and as such shall have the general powers conferred in section thirteen of Act
Numbered One thousand four hundred fifty-nine, as amended, and shall have
the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject
to such rules and regulations as shall be promulgated by the Board of
Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang
Panlalawigan of Laguna, a local government unit, cannot issue a resolution or an
ordinance that would seek to prohibit permits. Stated otherwise, what the national
legislature expressly allows by law, such as lotto, a provincial board may not disallow
by ordinance or resolution.
In our system of government, the power of local government units to legislate and
enact ordinances and resolutions is merely a delegated power coming from
Congress. As held in Tatel vs. Virac,13 ordinances should not contravene an existing
statute enacted by Congress. The reasons for this is obvious, as elucidated
inMagtajas v. Pryce Properties Corp.14
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by

Congress as the national lawmaking body. The delegate cannot be superior to

the principal or exercise powers higher than those of the latter. It is a heresy
to suggest that the local government units can undo the acts of Congress,
from which they have derived their power in the first place, and negate by
mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose it capable of
so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the state, and the corporation could not prevent it.
We know of no limitation on the right so far as the corporation themselves are
concerned. They are, so to phrase it, the mere tenants at will of the legislature
(citing Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a
different conclusion.
The basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than
under our previous Constitutions. The power to create still includes the power
to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax (citing Art. X,
Sec. 5, Constitution), which cannot now be withdrawn by mere statute. By and
large, however, the national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it. 15
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined
within the extent allowed by the central authority. Besides, the principle of local
autonomy under the 1987 Constitution simply means "decentralization". It does not
make local governments sovereign within the state or an "imperium in imperio".16
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot
avail of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as
justification to prohibit lotto in his municipality. For said resolution is nothing but an
expression of the local legislative unit concerned. The Board's enactment, like spring
water, could not rise above its source of power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c)
and 27 of Republic Act 7160, otherwise known as the Local Government Code of
1991, apply mandatorily in the setting up of lotto outlets around the country. These
provisions state:

SECTION 2. Declaration of Policy. . . .

(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions.
SECTION 27. Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained; Provided, that occupants in areas where
such projects are to be implemented shall not be evicted unless, appropriate
relocation sites have been provided, in accordance with the provisions of the
Constitution.
From a careful reading of said provisions, we find that these apply only to national
programs and/or projects which are to be implemented in a particular local
community. Lotto is neither a program nor a project of the national government, but
of a charitable institution, the PCSO. Though sanctioned by the national government,
it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27
of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26
thereof.17 Section 26 reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. - It shall be the duty of every national agency or
government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of crop
land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and
other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to
mean projects and programs whose effects are among those enumerated in Section
26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-renewable resources; (4) may result in
loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or
plant species from the face of the planet; and (6) other projects or programs that may
call for the eviction of a particular group of people residing in the locality where these
will be implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly
an afterthought on their part. There is no indication in the letter of Mayor Cataquiz

that this was one of the reasons for his refusal to issue a permit. That refusal was
predicated solely but erroneously on the provisions of Kapasiyahan Blg. 508, Taon
1995, of the Sangguniang Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz
from enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of
the Sangguniang Panlalawigan of Laguna. That resolution expresses merely a policy
statement of the Laguna provincial board. It possesses no binding legal force nor
requires any act of implementation. It provides no sufficient legal basis for
respondent mayor's refusal to issue the permit sought by private respondent in
connection with a legitimate business activity authorized by a law passed by
Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional
Trial Court of San Pedro, Laguna enjoining the petitioners from implementing or
enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of
Laguna is hereby AFFIRMED. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND
GAMING CORPORATION,respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The
religious elements echoed the objection and so did the women's groups and the

youth. Demonstrations were led by the mayor and the city legislators. The media
trumpeted the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it
leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of
the herein private respondents, renovated and equipped the same, and prepared to
inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and
hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS
PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY
ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED
ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF
CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of
Cagayan de Oro, in session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation
of casino within its territorial jurisdiction, no business permit shall be
issued to any person, partnership or corporation for the operation of
casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any
persons, partnership or corporation to use its business establishment
or portion thereof, or allow the use thereof by others for casino
operation and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business
permit as defined in the preceding section shall suffer the following
penalties, to wit:
a) Suspension of the business permit for
sixty (60) days for the first offense and a
fine of P1,000.00/day
b) Suspension of the business permit for Six
(6) months for the second offense, and a
fine of P3,000.00/day
c) Permanent revocation of the business
permit and imprisonment of One (1) year,
for the third and subsequent offenses.

Sec. 4. This Ordinance shall take effect ten (10) days from
publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93
reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND
PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990
against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the establishment of
CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No.
3353, prohibiting the issuance of Business Permit and to cancel
existing Business Permit to any establishment for the using and
allowing to be used its premises or portion thereof for the operation of
CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the
Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No.
(4), Paragraph VI of the implementing rules of the Local Government
Code, the City Council as the Legislative Body shall enact measure to
suppress any activity inimical to public morals and general welfare of
the people and/or regulate or prohibit such activity pertaining to
amusement or
entertainment
in order to protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan
de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the
following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the
proprietor, partnership or corporation undertaking the operation,
conduct, maintenance of gambling CASINO in the City and closure
thereof;

b) Imprisonment of not less than six (6) months nor more than one (1)
year or a fine in the amount of P5,000.00 or both at the discretion of
the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of
gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its
publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by
PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On
March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the
writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review
under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of
Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of
Cagayan de Oro does not have the power and authority to prohibit the
establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited
games
of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160
could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are
therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial
to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with
the general powers and purposes of the instrumentality concerned and
inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing
of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and
regulate all games of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming
Corporation, 4 this Court sustained the constitutionality of the decree and even cited
the benefits of the entity to the national economy as the third highest revenue-earner
in the government, next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly
vested with the police power under what is known as the General Welfare Clause
now embodied in Section 16 as follows:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The
Sangguniang Panlungsod, as the legislative body of the city, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of
this Code and in the proper exercise of the corporate powers of the city
as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient
and effective city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent,
suppress and impose appropriate penalties
for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution,
establishment and maintenance of houses
of ill repute,gambling and other prohibited
games of chance, fraudulent devices and
ways to obtain money or property, drug
addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or
pornographic materials or publications, and
such other activities inimical to the welfare
and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and
businesses within their territorial limits in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the Sangguniang

Panlungsod may prohibit the operation of casinos because they involve games of
chance, which are detrimental to the people. Gambling is not allowed by general law
and even by the Constitution itself. The legislative power conferred upon local
government units may be exercised over all kinds of gambling and not only over
"illegal gambling" as the respondents erroneously argue. Even if the operation of
casinos may have been permitted under P.D. 1869, the government of Cagayan de
Oro City has the authority to prohibit them within its territory pursuant to the authority
entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy
as mandated in Article II, Section 25, and Article X of the Constitution, as well as
various other provisions therein seeking to strengthen the character of the nation. In
giving the local government units the power to prevent or suppress gambling and
other social problems, the Local Government Code has recognized the competence
of such communities to determine and adopt the measures best expected to promote
the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited games of
chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise,
it would have expressly excluded from the scope of their power casinos and other
forms of gambling authorized by special law, as it could have easily done. The fact
that it did not do so simply means that the local government units are permitted to
prohibit all kinds of gambling within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later enactment than
P.D. 1869 and so is deemed to prevail in case of inconsistencies between them.
More than this, the powers of the PAGCOR under the decree are expressly
discontinued by the Code insofar as they do not conform to its philosophy and
provisions, pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local
Government Code on P.D. 1869, the doubt must be resolved in favor of the
petitioners, in accordance with the direction in the Code calling for its liberal
interpretation in favor of the local government units. Section 5 of the Code
specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions
of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be
liberally interpreted in its favor, and in case of doubt, any question

thereon shall be resolved in favor of devolution of powers and of the

lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of life for
the people in the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various
provisions of the Constitution and several decisions of this Court expressive of the
general and official disapprobation of the vice. They invoke the State policies on the
family and the proper upbringing of the youth and, as might be expected, call
attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry the immorality
of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a
martial law instrument") in creating PAGCOR and authorizing it to operate casinos
"on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the people, there is
nothing in the Constitution categorically proscribing or penalizing gambling or, for
that matter, even mentioning it at all. It is left to Congress to deal with the activity as
it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling
altogether or allow it without limitation or it may prohibit some forms of gambling and
allow others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court has
no authority to review, much less reverse. Well has it been said that courts do not sit
to resolve the merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or
practicibility of statutes are not addressed to the judiciary but may be resolved only
by the legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these branches
decide, they are answerable only to their own conscience and the constituents who
will ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance
No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod
of Cagayan de Oro City. And we shall do so only by the criteria laid down by law and
not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has
held that to be valid, an ordinance must conform to the following substantive
requirements:

1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local
government units are authorized to prevent or suppress, among others, "gambling
and other prohibited games of chance." Obviously, this provision excludes games of
chance which are not prohibited but are in fact permitted by law. The petitioners are
less than accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be
interpreted in relation to, or given the same meaning of, words with which it is
associated. Accordingly, we conclude that since the word "gambling" is associated
with "and other prohibited games of chance," the word should be read as referring to
only illegal gambling which, like the other prohibited games of chance, must be
prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively.
But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of
Cagayan de Oro City, and the earnestness of their advocacy, deserve more than
short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869
and the public policy embodied therein insofar as they prevent PAGCOR from
exercising the power conferred on it to operate a casino in Cagayan de Oro City. The
petitioners have an ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail
against a statute. Their theory is that the change has been made by the Local
Government Code itself, which was also enacted by the national lawmaking authority.
In their view, the decree has been, not really repealed by the Code, but merely
"modified pro tanto" in the sense that PAGCOR cannot now operate a casino over
the objection of the local government unit concerned. This modification of P.D. 1869
by the Local Government Code is permissible because one law can change or
repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the
decree has only been "modifiedpro tanto," they are actually arguing that it is already
dead, repealed and useless for all intents and purposes because the Code has
shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Section 458 of the Code if the
word "shall" as used therein is to be given its accepted meaning. Local government

units have now no choice but to prevent and suppress gambling, which in the
petitioners' view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize as they must
all be prohibited by the local government units pursuant to the mandatory duty
imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist
except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation
of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,
conveniently discarding the rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order No.
112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No.
5447 regarding the Special Education Fund; Presidential Decree No.
144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No. 436
as amended by Presidential Decree No. 558; and Presidential Decree
Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed
and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar
as they are inconsistent with the provisions of this Code: Sections 2, 16,
and 29 of Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71,
72, 73, and 74 of Presidential Decree No. 463, as amended; and
Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.
Apostol, 10 this Court explained:

The cases relating to the subject of repeal by implication all proceed on

the assumption that if the act of later date clearly reveals an intention
on the part of the lawmaking power to abrogate the prior law, this
intention must be given effect; but there must always be a sufficient
revelation of this intention, and it has become an unbending rule of
statutory construction that the intention to repeal a former law will not
be imputed to the Legislature when it appears that the two statutes, or
provisions, with reference to which the question arises bear to each
other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary,
as the private respondent points out, PAGCOR is mentioned as the source of
funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of
Claims under the Department of Justice for the benefit of victims of unjust
punishment or detention or of violent crimes, and R.A. 7648, providing for measures
for the solution of the power crisis. PAGCOR revenues are tapped by these two
statutes. This would show that the PAGCOR charter has not been repealed by the
Local Government Code but has in fact been improved as it were to make the entity
more responsive to the fiscal problems of the government.
It is a
canon
of legal hermeneutics that instead of pitting one statute against another in an
inevitably destructive confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve a becoming respect as the handiwork of a
coordinate branch of the government. On the assumption of a conflict between P.D.
1869 and the Code, the proper action is not to uphold one and annul the other but to
give effect to both by harmonizing them if possible. This is possible in the case
before us. The proper resolution of the problem at hand is to hold that under the
Local Government Code, local government units may (and indeed must) prevent and
suppress all kinds of gambling within their territories except only those allowed by
statutes like P.D. 1869. The exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally effective and mutually
complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit,
the illegal and those authorized by law. Legalized gambling is not a modern concept;
it is probably as old as illegal gambling, if not indeed more so. The petitioners'
suggestion that the Code authorizes them to prohibit all kinds of gambling would
erase the distinction between these two forms of gambling without a clear indication
that this is the will of the legislature. Plausibly, following this theory, the City of
Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office
from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races
at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion
urged on us by the petitioners that the ordinances in question are valid. On the
contrary, we find that the ordinances violate P.D. 1869, which has the character and

force of a statute, as well as the public policy expressed in the decree allowing the
playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute
is obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might, by a single
act, and if we can suppose it capable of so great a folly and so great a
wrong, sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are
concerned. They are, so to phrase it, the mere tenants at will of the
legislature. 11
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to
tax, 12which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which cannot
defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of
their constituents and their apprehensions that the welfare of Cagayan de Oro City
will be endangered by the opening of the casino. We share the view that "the hope of
large or easy gain, obtained without special effort, turns the head of the
workman"13 and that "habitual gambling is a cause of laziness and ruin." 14 In People
v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out.
The laws against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of mischief."
Nevertheless, we must recognize the power of the legislature to decide, in its own
wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and
impliedly affirmed in the Local Government Code. That decision can be revoked by
this Court only if it contravenes the Constitution as the touchstone of all official acts.
We do not find such contravention here.

We hold that the power of PAGCOR to centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines,
remains unimpaired. P.D. 1869 has not been modified by the Local Government
Code, which empowers the local government units to prevent or suppress only those
forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute
that cannot be amended or nullified by a mere ordinance. Hence, it was not
competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their
praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public
policy announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the
respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so
ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitionersappellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY,
Branch 11, and the CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutionality of
Ordinance No. 640 passed by the Municipal Board of the City of Butuan on April 21,
1969, the title and text of which are reproduced below:
ORDINANCE--640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS,

ENTITY OR CORPORATION ENGAGED IN THE BUSINESS OF
SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC
EXHIBITIONS,
GAMES
, CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF
AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR
ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID
TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session
assembled, that:
SECTION 1It shall be unlawful for any person, group of persons,
entity, or corporation engaged in the business of selling admission
tickets to any movie or other public exhibitions, games, contests, or
other performances to require children between seven (7) and twelve
(12) years of age to pay full payment for admission tickets intended for
adults but should charge only one-half of the value of the said tickets.
SECTION 2Any person violating the provisions of this Ordinance
shall upon conviction be punished by a fine of not less than TWO
HUNDRED PESOS (P200.00) but not more than SIX HUNDRED
PESOS (P600.00) or an imprisonment of not less than TWO (2)
MONTHS or not more than SIX (6) MONTHS or both such firm and
imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed
upon the Manager, Agent or Representative of such firm or corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the
Maya and Dalisay Theaters, the Crown Theater, and the Diamond Theater,
respectively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint
before the Court of First Instance of Agusan del Norte and Butuan City docketed as
Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subject
ordinance be declared unconstitutional and, therefore, void and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14,
1969 by the court a quo enjoining the respondent City of Butuan and its officials from
enforcing Ordinance No. 640. 3 On July 29, 1969, respondents filed their answer
sustaining the validity of the ordinance. 4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973,
the respondent court rendered its decision, 6 the dispositive part of which reads:

IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges

in favor of the respondents and against the petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and
valid: Provided, however, that the fine for a single offense shall not
exceed TWO HUNDRED PESOS, as prescribed in the aforequoted
Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo
which was denied in a resolution of the said court dated November 10, 1973. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the
grounds that it is ultra vires and an invalid exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal
Board to enact as provided for in Section 15(n) of Republic Act No. 523, the Charter
of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board Except as
otherwise provided by law, and subject to the conditions and limitations
thereof, the Municipal Board shall have the following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the
following; . . . theaters, theatrical performances, cinematographs, public
exhibitions and all other performances and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment of
the ordinance by invoking the general welfare clause embodied in Section 15 (nn) of
the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort, convenience,
and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and
duties conferred by this Act, and to fix the penalties for the violation of
the ordinances, which shall not exceed a two hundred peso fine or six

months imprisonment, or both such fine and imprisonment, for a single

offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the
amount of license fees for theaters, theatrical performances, cinematographs, public
exhibitions and other places of amusement has been expressly granted to the City of
Butuan under its charter. But the question which needs to be resolved is this: does
this power to regulate include the authority to interfere in the fixing of prices of
admission to these places of exhibition and amusement whether under its general
grant of power or under the general welfare clause as invoked by the City?
This is the first time this Court is confronted with the question of direct interference
by the local government with the operation of theaters, cinematographs and the like
to the extent of fixing the prices of admission to these places. Previous decisions of
this Court involved the power to impose license fees upon businesses of this nature
as a corollary to the power of the local government to regulate them. Ordinances
which required moviehouses or theaters to increase the price of their admission
tickets supposedly to cover the license fees have been held to be invalid for these
impositions were considered as not merely license fees but taxes for purposes of
revenue and not regulation which the cities have no power to exact, 10 unless
expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was
interpreted to include the power to control, to govern and to restrain, it would seem
that under its power to regulate places of exhibitions and amusement, the Municipal
Board of the City of Butuan could make proper police regulations as to the mode in
which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the business of selling
admission tickets to public exhibitions or performances by virtue of the power of
cities under the General City Law "to maintain order, enforce the laws, protect
property and preserve and care for the safety, health, comfort and general welfare of
the inhabitants of the city and visitors thereto; and for any of said purposes, to
regulate and license occupations" was considered not to be within the scope of any
duty or power implied in the charter. It was held therein that the power of regulation
of public exhibitions and places of amusement within the city granted by the charter
does not carry with it any authority to interfere with the price of admission to such
places or the resale of tickets or tokens of admission.
In this jurisdiction, it is already settled that the operation of theaters, cinematographs
and other places of public exhibition are subject to regulation by the municipal
council in the exercise of delegated police power by the local government. 14 Thus,
in People v. Chan, 15 an ordinance of the City of Manila prohibiting first run
cinematographs from selling tickets beyond their seating capacity was upheld as
constitutional for being a valid exercise of police power. Still in another case, 16 the
validity of an ordinance of the City of Bacolod prohibiting admission of two or more
persons in moviehouses and other amusement places with the use of only one ticket
was sustained as a valid regulatory police measure not only in the interest of
preventing fraud in so far as municipal taxes are concerned but also in accordance
with public health, public safety, and the general welfare.

The City of Butuan, apparently realizing that it has no authority to enact the
ordinance in question under its power to regulate embodied in Section 15(n), now
invokes the police power as delegated to it under the general welfare clause to justify
the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest of
the public generally requires an interference with private rights, but the means
adopted must be reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals. 17 The legislature may not, under the guise
of protecting the public interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other words, the
determination as to what is a proper exercise of its police power is not final or
conclusive, but is subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the
Constitution for being oppressive, unfair, unjust, confiscatory, and an undue restraint
of trade, and violative of the right of persons to enter into contracts, considering that
the theater owners are bound under a contract with the film owners for just
admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of
Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police
power, Inasmuch as the same generally entails a curtailment of the
liberty, the rights and/or the property of persons, which are protected
and even guaranteed by the Constitution, the exercise of police power
is necessarily subject to a qualification, limitation or restriction
demanded by the regard, the respect and the obedience due to the
prescriptions of the fundamental law, particularly those forming part of
the Constitution of Liberty, otherwise known as the Bill of Rights the
police power measure must be reasonable. In other words, individual
rights may be adversely affected by the exercise of police power to the
extent only and only to the extent--that may be fairly required by the
legitimate demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the
ordinance in question was passed shows that a certain Councilor Calo, the
proponent of the measure, had taken into account the complaints of parents that for
them to pay the full price of admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does not spell
out its raison d'etre in all probability the respondents were impelled by the awareness
that children are entitled to share in the joys of their elders, but that considering that,
apart from size, children between the ages of seven and twelve cannot fully grasp
the nuance of
movies

or other public exhibitions, games, contests or other performances, the admission

prices with respect to them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands the
adoption of proper measures to secure the ends sought to be attained by the
enactment of the ordinance, and the large discretion is necessarily vested in the
legislative authority to determine not only what the interests of the public require, but
what measures are necessary for the protection of such interests. 20 The methods or
means used to protect the public health, morals, safety or welfare, must have some
relation to the end in view, for under the guise of the police power, personal rights
and those pertaining to private property will not be permitted to be arbitralily invaded
by the legislative department. 21
We agree with petitioners that the ordinance is not justified by any necessity for the
public interest. The police power legislation must be firmly grounded on public
interest and welfare, and a reasonable relation must exist between purposes and
means. 22 The evident purpose of the ordinance is to help ease the burden of cost on
the part of parents who have to shell out the same amount of money for the
admission of their children, as they would for themselves, A reduction in the price of
admission would mean corresponding savings for the parents; however, the
petitioners are the ones made to bear the cost of these savings. The ordinance does
not only make the petitioners suffer the loss of earnings but it likewise penalizes
them for failure to comply with it. Furthermore, as petitioners point out, there will be
difficulty in its implementation because as already experienced by petitioners since
the effectivity of the ordinance, children over 12 years of age tried to pass off their
age as below 12 years in order to avail of the benefit of the ordinance. The ordinance
does not provide a safeguard against this undesirable practice and as such, the
respondent City of Butuan now suggests that birth certificates be exhibited by movie
house patrons to prove the age of children. This is, however, not at all practicable.
We can see that the ordinance is clearly unreasonable if not unduly oppressive upon
the business of petitioners. Moreover, there is no discernible relation between the
ordinance and the promotion of public health, safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from the
pernicious practice of movie operators and other public exhibitions promoters or the
like of demanding equal price for their admission tickets along with the adults. This
practice is allegedly repugnant and unconscionable to the interest of the City in the
furtherance of the prosperity, peace, good order, comfort, convenience and the
general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adults.
The petitioners are merely conducting their legitimate businesses. The object of
every business entrepreneur is to make a profit out of his venture. There is nothing
immoral or injurious in charging the same price for both children and adults. In fact,
no person is under compulsion to purchase a ticket. It is a totally voluntary act on the
part of the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and
necessary to lessen the economic burden of parents whose minor children are lured
by the attractive nuisance being maintained by the petitioners. Respondent further

alleges that by charging the full price, the children are being exploited by movie
house operators. We fail to see how the children are exploited if they pay the full
price of admission. They are treated with the same quality of
entertainment
as the adults. The supposition of the trial court that because of their age children
cannot fully grasp the nuances of such
entertainment
as adults do fails to convince Us that the reduction in admission ticket price is
justifiable. In fact, by the very claim of respondent that movies and the like are
attractive nuisances, it is difficult to comprehend why the municipal board passed the
subject ordinance. How can the municipal authorities consider the movies an
attractive nuisance and yet encourage parents and children to patronize them by
lowering the price of admission for children? Perhaps, there is some ,truth to the
argument of petitioners that Ordinance No. 640 is detrimental to the public good and
the general welfare of society for it encourages children of tender age to frequent the
movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater
operators will be discouraged from exhibiting wholesome movies for general
patronage, much less children's pictures if only to avoid compliance with the
ordinance and still earn profits for themselves. For after all, these movie house and
theater operators cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which are restricted
by censorship laws. So instead of children being able to share in the joys of their
elders as envisioned by the trial court, there will be a dearth of wholesome and
educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state
courts of the United States which upheld the right of the proprietor of a theater to fix
the price of an admission ticket as against the right of the state to interfere in this
regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will
of the proprietor of the theater or it may be evidence of a contract whereby, for a
valuable consideration, the purchaser has acquired the right to enter the theater and
observe the performance on condition that he behaves properly. 23 Such ticket,
therefore, represents a right, Positive or conditional, as the case may be, according
to the terms of the original contract of sale. This right is clearly a right of property.
The ticket which represents that right is also, necessarily, a species of property. As
such, the owner thereof, in the absence of any condition to the contrary in the
contract by which he obtained it, has the clear right to dispose of it, to sell it to whom
he pleases and at such price as he can obtain. 24 So that an act prohibiting the sale
of tickets to theaters or other places of amusement at more than the regular price
was held invalid as conflicting with the state constitution securing the right of
property. 25
In Collister vs. Hayman, 26 it was held:

The defendants were conducting a private business, which, even if

clothed with a public interest, was without a franchise to accommodate
the public, and they had the right to control it, the same as the
proprietors of any other business, subject to such obligations as were
placed upon them by statute. Unlike a carrier of passengers, for
instance, with a franchise from the state, and hence under obligation to
transport anyone who applies and to continue the business year in and
year out, the proprietors of a theater can open and close their place at
will, and no one can make a lawful complaint. They can charge what
they choose for admission to their theater. They can limit the number
admitted. They can refuse to sell tickets and collect the price of
admission at the door. They can preserve order and enforce quiet while
the performance is going on. They can make it a part of the contract
and condition of admission, by giving due notice and printing the
condition in the ticket that no one shall be admitted under 21 years of
age, or that men only or women only shall be admitted, or that a
woman cannot enter unless she is accompanied by a male escort, and
the like. The proprietors, in the control of their business, may regulate
the terms of admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the contract. If
the terms are satisfactory, and the contract is made, the minds of the
parties meet upon the condition, and the purchaser impliedly promises
to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton, 27 the United
States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public
utility; and quite as certainly, its activities are not such that their
enjoyment can be regarded under any conditions from the point of view
of an emergency.
The interest of the public in theaters and other places of entertainment
may be more nearly, and with better reason, assimilated to the like
interest in provision stores and markets and in the rental of houses and
apartments for residence purposes; although in importance it fails
below such an interest in the proportion that food and shelter are of
more moment than amusement or instruction. As we have shown there
is no legislative power to fix the prices of provisions or clothing, or the
rental charges for houses and apartments, in the absence of some
controlling emergency; and we are unable to perceive any
dissimilarities of such quality or degree as to justify a different rule in
respect of amusements and entertainment ...
We are in consonance with the foregoing observations and conclusions of American
courts. In this jurisdiction, legislation had been passed controlling the prices of goods
commodities and drugs during periods of emergency,28 limiting the net profits of
public utility 29 as well as regulating rentals of residential apartments for a limited
period, 30 as a matter of national policy in the interest of public health and safety,

economic security and the general welfare of the people. And these laws cannot be
impugned as unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other
exhibitions. In no sense could these businesses be considered public utilities. The
State has not found it appropriate as a national policy to interfere with the admission
prices to these performances. This does not mean however, that theaters and
exhibitions are not affected with public interest even to a certain degree. Motion
pictures have been considered important both as a medium for the communication of
Ideas and expression of the artistic impulse. Their effects on the perceptions by our
people of issues and public officials or public figures as well as the prevailing cultural
traits are considerable. 31 People of all ages flock to movie houses, games and other
public exhibitions for recreation and relaxation. The government realizing their
importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 Their aesthetic entertainment and even educational values cannot be
underestimated. Even police measures regulating the operation of these businesses
have been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise of
police power, the same must be resolved in the negative. While it is true that a
business may be regulated, it is equally true that such regulation must be within the
bounds of reason, that is, the regulatory ordinance must be reasonable, and its
provisions cannot be oppressive amounting to an arbitrary interference with the
business or calling subject of regulation. A lawful business or calling may not, under
the guise of regulation, be unreasonably interfered with even by the exercise of
police power. 33 A police measure for the regulation of the conduct, control and
operation of a business should not encroach upon the legitimate and lawful exercise
by the citizens of their property rights. 34 The right of the owner to fix a price at which
his property shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause."" Hence, the proprietors of a
theater have a right to manage their property in their own way, to fix what prices of
admission they think most for their own advantage, and that any person who did not
approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor of the
validity of the ordinance. This maybe the rule but it has already been held that
although the presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself or is established by
proper evidence. 37 The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial,
discriminating or in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioners for
even if We could assume that, on its face, the interference was reasonable, from the
foregoing considerations, it has been fully shown that it is an unwarranted and
unlawful curtailment of the property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, under the guise of
exercising police power, be upheld as valid.

WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby
REVERSED and SET ASIDE and a new judgment is hereby rendered declaring
Ordinance No. 640 unconstitutional and, therefore, null and void. This decision is
immediately executory.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 118127

April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila,
HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of
Manila and Presiding Officer of the City Council of Manila, HON. ERNESTO A.
NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ,
HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON.
NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON.
PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN,
HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A.
MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO,
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E.
HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON.
KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON.
BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER
S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and
HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of
Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and
MALATE TOURIST DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral
is what you feel bad after.

Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be
well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to "make the
hammer fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not lacking in zeal to
promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules
on Civil Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511
of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity
of Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and lodging
houses.5 It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the Department of Tourism as a hotel.6 On 28 June
1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the
lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila
(City Council). MTDC prayed that the Ordinance, insofar as it includes motels and
inns as among its prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the saidOrdinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION
OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT
, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
PURPOSES.10
The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary

notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North,
Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in
the West, pursuant to P.D. 499 be allowed or authorized to contract and
engage in, any business providing certain forms of amusement,
entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of
the said officials are prohibited from issuing permits, temporary or
otherwise, or from granting licenses and accepting payments for the
operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted
to, the businesses enumerated in Section 1 hereof are hereby given three (3)
months from the date of approval of this ordinance within which to wind
up business operations or to transfer to any place outside of the ErmitaMalate area or convert said businesses to other kinds of business
allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops

3. Handicrafts display centers

4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities
for wholesome family entertainment that cater to both local and foreign
clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but
also of cultural shows, stage and theatrical plays, art exhibitions,
concerts and the like.
11. Businesses allowable within the law and medium intensity districts
as provided for in the zoning ordinances for Metropolitan Manila,
except new warehouse or open-storage depot, dock or yard, motor
repair shop, gasoline service station, light industry with any machinery,
or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall
upon conviction, be punished by imprisonment of one (1) year or fine of
FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General
Manager, or person-in-charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and conviction, the
premises of the erring establishment shall be closed and padlocked
permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9,
1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly
included in its enumeration of prohibited establishments, motels and inns such as
MTDC's Victoria Court considering that these were not establishments for
"amusement" or "entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for entertainment," and neither did
they "disturb the community," "annoy the inhabitants" or "adversely affect the social
and moral welfare of the community."11

MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the establishment, operation
and maintenance of hotels, motels, inns, pension houses, lodging houses and other
similar establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate
area as a commercial zone with certain restrictions; (3) The Ordinance does not
constitute a proper exercise of police power as the compulsory closure of the motel
business has no reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power
to find as a fact that a particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of
equal protection under the law as no reasonable basis exists for prohibiting the
operation of motels and inns, but not pension houses, hotels, lodging houses or
other similar establishments, and for prohibiting said business in the Ermita-Malate
area but not outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained
that the City Council had the power to "prohibit certain forms of entertainment in
order to protect the social and moral welfare of the community" as provided for in
Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities
for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of

amusement or entertainment in order to protect the social and moral

welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation
spoken of in the above-quoted provision included the power to control, to govern and
to restrain places of exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of
Manila to protect the social and moral welfare of the community in conjunction with
its police power as found in Article III, Section 18(kk) of Republic Act No.
409,19 otherwise known as the Revised Charter of the City of Manila (Revised
Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. The Municipal Board shall have the
following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare of
the city and its inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months' imprisonment, or both such fine and
imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence,
private respondent had the burden to prove its illegality or unconstitutionality. 21
Petitioners also maintained that there was no inconsistency between P.D. 499 and
the Ordinance as the latter simply disauthorized certain forms of businesses and
allowed the Ermita-Malate area to remain a commercial zone.22 The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post facto as it was
prospective in operation.23 The Ordinance also did not infringe the equal protection
clause and cannot be denounced as class legislation as there existed substantial
and real differences between the Ermita-Malate area and other places in the City of
Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued
an ex-parte temporary restraining order against the enforcement of
the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the
writ of preliminary injunction prayed for by MTDC.26

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion of
said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3],
Series of 1993, of the City of Manila null and void, and making permanent the
writ of preliminary injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that
the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and
oppressive exercise of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in
declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions
they made before the lower court. They contend that the assailed Ordinance was
enacted in the exercise of the inherent and plenary power of the State and the
general welfare clause exercised by local government units provided for in Art. 3,
Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4
(vii) of the Code.34 They allege that theOrdinance is a valid exercise of police power;
it does not contravene P.D. 499; and that it enjoys the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general law.
It reiterates that the questioned Ordinance is not a valid exercise of police power;
that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection clause;
and that it confers on petitioner City Mayor or any officer unregulated discretion in
the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for
the Ermita-Malate area being its home for several decades. A long-time resident, the
Court witnessed the area's many turn of events. It relished its glory days and
endured its days of infamy. Much as the Court harks back to the resplendent era of
the Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of the opinion, and
so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein

transgress the cardinal rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held
that for an ordinance to be valid, it must not only be within the corporate powers of
the local government unit to enact and must be passed according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not contrary to
the Constitution and to the laws.38 The Ordinance must satisfy two requirements: it
must pass muster under the test of constitutionality and the test of consistency with
the prevailing laws. That ordinances should be constitutional uphold the principle of
the supremacy of the Constitution. The requirement that the enactment must not
violate existing law gives stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a delegation of legislative
power from the national legislature. The delegate cannot be superior to the principal
or exercise powers higher than those of the latter.39
This relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy
of local autonomy. The national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it. 40
The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units,
as agencies of the State, are endowed with police power in order to effectively
accomplish and carry out the declared objects of their creation.41 This delegated
police power is found in Section 16 of the Code, known as the general welfare
clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative
bodies; in this case, thesangguniang panlungsod or the city council. The Code
empowers the legislative bodies to "enact ordinances, approve resolutions and

appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code. 42 The
inquiry in this Petition is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate
to the constitutional limitations thereon; and is subject to the limitation that its
exercise must be reasonable and for the public good.43In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.45
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use without just
compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person
shall be deprived of life, liberty or property without due process of law. . . ."48
There is no controlling and precise definition of due process. It furnishes though a
standard to which governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of reason, obedience to the
dictates of justice,49 and as such it is a limitation upon the exercise of the police
power.50
The purpose of the guaranty is to prevent governmental encroachment against the
life, liberty and property of individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained by the established principles
of private rights and distributive justice; to protect property from confiscation by
legislative enactments, from seizure, forfeiture, and destruction without a trial and
conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.51

The guaranty serves as a protection against arbitrary regulation, and private

corporations and partnerships are "persons" within the scope of the guaranty insofar
as their property is concerned.52
This clause has been interpreted as imposing two separate limits on government,
usually called "procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with what kind of notice and
what form of hearing the government must provide when it takes a particular
action.53
Substantive due process, as that phrase connotes, asks whether the government
has an adequate reason for taking away a person's life, liberty, or property. In other
words, substantive due process looks to whether there is a sufficient justification for
the government's action.54 Case law in the United States (U.S.) tells us that whether
there is such a justification depends very much on the level of scrutiny used. 55 For
example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet substantive due
process only if it can prove that the law is necessary to achieve a compelling
government purpose.56
The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of
the law. Such power cannot be exercised whimsically, arbitrarily or despotically57 as
its exercise is subject to a qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the fundamental law, particularly those
forming part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare.58 Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and
property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional
infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. 60 It must
be evident that no other alternative for the accomplishment of the purpose less
intrusive of private rights can work. A reasonable relation must exist between the
purposes of the police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily invaded. 61

Lacking a concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights62 a violation of the due process
clause.
The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly
operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and
motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial
notice of the "alarming increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Council's police powers,
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication
of the community's social ills can be achieved through means less restrictive of
private rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will notper se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery,
fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit, 65 it is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which are not per
se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of
places that it may even take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be
followed, in the remote instance that an immoral sexual act transpires in a church
cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park,
curb, street or even vehicles for that matter will not be exempt from the prohibition.

Simply because there are no "pure" places where there are impure men. Indeed,
even the Scripture and the Tradition of Christians churches continually recall the
presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature
cannot be said to be injurious to the health or comfort of the community and which in
itself is amoral, but the deplorable human activity that may occur within its premises.
While a motel may be used as a venue for immoral sexual activity, it cannot for that
reason alone be punished. It cannot be classified as a house of ill-repute or as a
nuisance per se on a mere likelihood or a naked assumption. If that were so and if
that were allowed, then the Ermita-Malate area would not only be purged of its
supposed social ills, it would be extinguished of its soul as well as every human
activity, reprehensible or not, in its every nook and cranny would be laid bare to the
estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinancemay to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
"wholesome," "innocent" establishments. In the instant case, there is a clear invasion
of personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City
of Manila so desires to put an end to prostitution, fornication and other social ills, it
can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may
exercise its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners
and/or operators of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which "to wind up business operations
or to transfer to any place outside the Ermita-Malate area or convert said businesses
to other kinds of business allowable within the area." Further, it states in Section 4
that in cases of subsequent violations of the provisions of the Ordinance, the
"premises of the erring establishment shall be closed and padlocked permanently."

It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include
"the right to exist and the right to be free from arbitrary restraint or servitude. The
term cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare."68 In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any avocation are all
deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify
the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme
Court explained:
These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
universe, and of the mystery of human life. Beliefs about these matters could
not define the attributes of personhood where they formed under compulsion
of the State.71
Persons desirous to own, operate and patronize the enumerated establishments
under Section 1 of the Ordinancemay seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motel's premisesbe
it stressed that their consensual sexual behavior does not contravene any
fundamental state policy as contained in the Constitution.72 Adults have a right to
choose to forge such relationships with others in the confines of their own private
lives and still retain their dignity as free persons. The liberty protected by the

Constitution allows persons the right to make this choice.73 Their right to liberty under
the due process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law. Liberty
should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The
right to be let alone is the beginning of all freedomit is the most comprehensive of
rights and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words
of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is
set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in
itself it is fully deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties
but the Court chooses to exercise restraint and restrict itself to the issues presented
when it should. The previous pronouncements of the Court are not to be interpreted
as a license for adults to engage in criminal conduct. The reprehensibility of such
conduct is not diminished. The Court only reaffirms and guarantees their right to
make this choice. Should they be prosecuted for their illegal conduct, they should
suffer the consequences of the choice they have made. That, ultimately, is their
choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests
the respondent of the beneficial use of its property.77 The Ordinance in Section 1
thereof forbids the running of the enumerated businesses in the Ermita-Malate area
and in Section 3 instructs its owners/operators to wind up business operations or to
transfer outside the area or convert said businesses into allowed businesses. An
ordinance which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as a taking
of the property without just compensation.78 It is intrusive and violative of the private
property rights of individuals.

The Constitution expressly provides in Article III, Section 9, that "private property
shall not be taken for public use without just compensation." The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking
occurs when the government confiscates or physically occupies property. A
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also
could be found if government regulation of the use of property went "too far." When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property
may be regulated to a certain extent, if regulation goes too far it will be recognized as
a taking.82
No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
"a question of degree and therefore cannot be disposed of by general propositions."
On many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each case.
The Court asks whether justice and fairness require that the economic loss caused
by public action must be compensated by the government and thus borne by the
public as a whole, or whether the loss should remain concentrated on those few
persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that government
regulation is a taking if it leaves no reasonable economically viable use of property in
a manner that interferes with reasonable expectations for use.84A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owner's point of view, equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land make the use
prohibitable.85 When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places
limitations on land that fall short of eliminating all economically beneficial use, a
taking nonetheless may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings

clause which is to prevent the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole.87
A restriction on use of property may also constitute a "taking" if not reasonably
necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments
three (3) months from its approval within which to "wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area." The directive to "wind up business
operations" amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his
establishment to accommodate an "allowed" business, the structure which housed
the previous business will be left empty and gathering dust. Suppose he transfers it
to another area, he will likewise leave the entire establishment idle. Consideration
must be given to the substantial amount of money invested to build the edifices
which the owner reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businessesare confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without
just compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to
the "problem," it merely relocates it. Not only is this impractical, it is unreasonable,
onerous and oppressive. The conversion into allowed enterprises is just as ridiculous.
How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking of
private property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a subsequent violation should
be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A
zoning ordinance, although a valid exercise of police power, which limits a
"wholesome" property to a use which can not reasonably be made of it constitutes
the taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we know
them. The police powers of local government units which have always received
broad and liberal interpretation cannot be stretched to cover this particular taking.

Distinction should be made between destruction from necessity and eminent

domain. It needs restating that the property taken in the exercise of police power is
destroyed because it is noxious or intended for a noxious purpose while the property
taken under the power of eminent domain is intended for a public use or purpose
and is therefore "wholesome."89 If it be of public benefit that a "wholesome" property
remain unused or relegated to a particular purpose, then certainly the public should
bear the cost of reasonable compensation for the condemnation of private property
for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the petitioners'
actions. It in no way controls or guides the discretion vested in them. It provides no
definition of the establishments covered by it and it fails to set forth the conditions
when the establishments come within its ambit of prohibition. The Ordinance confers
upon the mayor arbitrary and unrestricted power to close down establishments.
Ordinances such as this, which make possible abuses in its execution, depending
upon no conditions or qualifications whatsoever other than the unregulated arbitrary
will of the city authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by which its
impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of property must, in order to be
valid and constitutional, specify the rules and conditions to be observed and conduct
to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its provisions. 92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S.
Supreme Court struck down an ordinance that had made it illegal for "three or more
persons to assemble on any sidewalk and there conduct themselves in a manner
annoying to persons passing by." The ordinance was nullified as it imposed no
standard at all "because one may never know in advance what 'annoys some people
but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which
establishments "tend to disturb the community," "annoy the inhabitants," and
"adversely affect the social and moral welfare of the community." The cited case
supports the nullification of the Ordinance for lack of comprehensible standards to
guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments
without infringing the due process clause. These lawful establishments may be
regulated, but not prevented from carrying on their business. This is a sweeping
exercise of police power that is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into personal and private rights which
the Court will not countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which
is a far cry from the ill-considered Ordinance enacted by the City Council.

In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance

regulating "sexually oriented businesses," which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies,
nude model studio and sexual encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel owners were among the
three groups of businesses that filed separate suits challenging the ordinance. The
motel owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than ten (10)
hours resulted in increased crime and other secondary effects. They likewise argued
than the ten (10)-hour limitation on the rental of motel rooms placed an
unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was adequate to support
the city's determination that motels permitting room rentals for fewer than ten (10 )
hours should be included within the licensing scheme. As regards the second point,
the Court held that limiting motel room rentals to ten (10) hours will have no
discernible effect on personal bonds as those bonds that are formed from the use of
a motel room for fewer than ten (10) hours are not those that have played a critical
role in the culture and traditions of the nation by cultivating and transmitting shared
ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor
of Manila,96 it needs pointing out, is also different from this case in that what was
involved therein was a measure which regulated the mode in which motels may
conduct business in order to put an end to practices which could encourage vice and
immorality. Necessarily, there was no valid objection on due process or equal
protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and
an undue restraint of trade, it cannot, even under the guise of exercising police
power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others.98 The guarantee means that no
person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances.99 The "equal
protection of the laws is a pledge of the protection of equal laws."100 It limits
governmental discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.101

The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for the law's benefits to be available to
all, that none be placed outside the sphere of its coverage. Only thus could
chance and favor be excluded and the affairs of men governed by that serene
and impartial uniformity, which is of the very essence of the idea of law."
There is recognition, however, in the opinion that what in fact exists "cannot
approximate the ideal. Nor is the law susceptible to the reproach that it does
not take into account the realities of the situation. The constitutional guarantee
then is not to be given a meaning that disregards what is, what does in fact
exist. To assure that the general welfare be promoted, which is the end of law,
a regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection
clause only if they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in
reason." Classification is thus not ruled out, it being sufficient to quote from
the Tuason decision anew "that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference cannot
be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions
cast on some in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause.103 The classification must, as an
indispensable requisite, not be arbitrary. To be valid, it must conform to the following
requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition,
all are commercial establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly treated,
both as to rights conferred and obligations imposed. It is arbitrary as it does not rest

on substantial distinctions bearing a just and fair relation to the purpose of

the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious
establishment does not become any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to banishis
not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. It is not any less grave a sin when men engage
in it. And why would the assumption that there is an ongoing immoral activity apply
only when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially
related to important government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in
Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation,
and maintenance of motels, hotels and other similar establishments is found in
Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses, and other similar establishments, including tourist guides and
transports . . . .

While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities
for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of
amusement or entertainment in order to protect the social and moral
welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress and prohibit
altogether the establishment, operation and maintenance of such establishments. It
is well to recall the rulings of the Court inKwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to govern, and
to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate laundries,
the municipal authorities could make proper police regulations as to the mode
in which the employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority

or power to regulate or to license and regulate the liquor traffic, power to
prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that they were modified
by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii). Its
powers to regulate, suppress and suspend "such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants" and to "prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community" are
stated in the second and third clauses, respectively of the same Section. The
several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code,
it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of
each other albeit closely related to justify being put together in a single enumeration
or paragraph.111 These powers, therefore, should not be confused, commingled or
consolidated as to create a conglomerated and unified power of regulation,
suppression and prohibition.112
The Congress unequivocably specified the establishments and forms of amusement
or entertainment subject to regulation among which are beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments (Section 458
(a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This
enumeration therefore cannot be included as among "other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants" or "certain forms of amusement or entertainment" which
the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it
and those which are necessarily implied or incidental to the exercise thereof. By
reason of its limited powers and the nature thereof, said powers are to be
construed strictissimi juris and any doubt or ambiguity arising out of the terms used
in granting said powers must be construed against the City Council.113 Moreover, it is
a general rule in statutory construction that the express mention of one person, thing,
or consequence is tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural
workings of human mind. It is particularly applicable in the construction of such
statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction.114
The argument that the City Council is empowered to enact the Ordinance by virtue of
the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila is likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra,115 is instructive. It held that:

The powers conferred upon a municipal council in the general welfare clause,
or section 2238 of the Revised Administrative Code, refers to matters not
covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in question,
notwithstanding the provision of section 2242 (g), would be to make the latter
superfluous and nugatory, because the power to prohibit, includes the power
to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised
Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute
repeals prior ones which are repugnant thereto. As between two laws on the same
subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will.116 If there is an
inconsistency or repugnance between two statutes, both relating to the same subject
matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail and
override the earlier.117
Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions expressly
repealing them. Such repeals have been divided into two general classes: those
which occur where an act is so inconsistent or irreconcilable with an existing prior act
that only one of the two can remain in force and those which occur when an act
covers the whole subject of an earlier act and is intended to be a substitute therefor.
The validity of such a repeal is sustained on the ground that the latest expression of
the legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts,
city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions
of this Code are hereby repealed or modified accordingly." Thus, submitting to
petitioners' interpretation that the Revised Charter of Manila empowers the City
Council to prohibit motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with the latter's provisions
granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property, health
or comfort of the community. It is a legitimate business. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial
intervention.119

Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy,
mendicancy, prostitution, establishment and maintenance of
houses of ill
repute, gambling and other prohibited
games
of chance, fraudulent devices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals of
the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may
prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City Council's powers
in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to
overreach its prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the "contractors" defined in paragraph (h) thereof. The same Section also
defined "amusement" as a "pleasurable diversion and entertainment," "synonymous
to relaxation, avocation, pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of amusement where
one seeks admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers these

establishments as legitimate enterprises and activities. It is well to recall the maxim

reddendo singula singulis which means that words in different parts of a statute must
be referred to their appropriate connection, giving to each in its place, its proper
force and effect, and, if possible, rendering none of them useless or superfluous,
even if strict grammatical construction demands otherwise. Likewise, where words
under consideration appear in different sections or are widely dispersed throughout
an act the same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule is
that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with or
repugnant to the general law.121 As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains
itself. Local political subdivisions are able to legislate only by virtue of a valid
delegation of legislative power from the national legislature (except only that
the power to create their own sources of revenue and to levy taxes is
conferred by the Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the Congress, the
local government units cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in question, which are
merely local in origin cannot prevail against the decree, which has the force
and effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of validity. While this
may be the rule, it has already been held that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness appears on the
face of the ordinance itself or is established by proper evidence. The exercise of
police power by the local government is valid unless it contravenes the fundamental
law of the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common
right.124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the enforcement of its sanctions. And
not to be forgotten, the City Council under the Code had no power to enact
the Ordinance and is therefore ultra vires, null and void.

Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its
social sins. Police power legislation of such character deserves the full endorsement
of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or constitutional authority to stand on.
Local legislative bodies, in this case, the City Council, cannot prohibit the operation
of the enumerated establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial
Court declaring the Ordinancevoid is AFFIRMED. Costs against petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of
the Philippine Senate and as taxpayers; GREGORIO ANDOLANA and JOKER
ARROYO as members of the House of Representatives and as taxpayers;
NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS,
INC., and PHILIPPINE PEASANT INSTITUTE, in representation of various
taxpayers and as non-governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI,
HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI
GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA. MACAPAGALARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA
RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE
WEBB, in their respective capacities as members of the Philippine Senate who
concurred in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ,
in his capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in

his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his

capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity
as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary, respondents.

PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the
world towards trade liberalization and economic globalization. Liberalization,
globalization, deregulation and privatization, the third-millennium buzz words, are
ushering in a new borderless world of business by sweeping away as mere historical
relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and becoming the best in
specific industries in a market-driven and export-oriented global scenario are
replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In the words of Peter Drucker,
the well-known management guru, "Increased participation in the world economy has
become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions inspired by that
grand political body, the United Nations were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and later developing countries;
the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize unilateral protectionist
policies that invite challenge, even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave
birth to that administering body the World Trade Organization with the signing
of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement
by its members. 1
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to

the Senate (infra), of improving "Philippine access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products." The President also saw in the WTO the opening
of "new opportunities for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of) more investments
into the country." Although the Chief Executive did not expressly mention it in his
letter, the Philippines and this is of special interest to the legal profession will
benefit from the WTO system of dispute settlement by judicial adjudication through
the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative
bargaining strengths, and where naturally, weak and underdeveloped countries were
at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and
products of member-countries on the same footing as Filipinos and local products"
and (2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of
both Congress and the Supreme Court, the instant petition before this Court assails
the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a
self-reliant and independent national economy effectively controlled by Filipinos . . .
(to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it proscribe
Philippine integration into a global economy that is liberalized, deregulated and
privatized? These are the main questions raised in this petition for certiorari,
prohibition andmandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in
the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of
its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive
offices concerned therewith. This concurrence is embodied in Senate Resolution No.
97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department
of Trade and Industry (Secretary Navarro, for brevity), representing the Government
of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act,
for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the
Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration

of their respective competent authorities, with a view to seeking
approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated
August 11, 1994 from the President of the Philippines, 3 stating among others that
"the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter
from the President of the Philippines 4 likewise dated August 11, 1994, which stated
among others that "the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification
of the Agreement Establishing the World Trade Organization." 5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
"Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in
the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization." 6 The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade
Negotiations and includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively
referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating

Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of
the Republic of the Philippines, after having seen and considered the
aforementioned Agreement Establishing the World Trade Organization
and the agreements and associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are
integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994,
do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and "the associated legal instruments included
in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the Understanding on Commitments
in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations
and decisions on a wide range of matters, such as measures in favor of
least developed countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and agreements on
technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of
commitments to existing non-conforming measures, market access,

national treatment, and definitions of non-resident supplier of financial

services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on
respondents' comment and petitioners' reply thereto, the Court resolved on
December 12, 1995, to give due course to the petition, and the parties thereafter
filed their respective memoranda. The court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as "Bautista Paper," 9 for brevity,
(1) providing a historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the
matter in controversy and (2) the transcript of proceedings/hearings in
the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of
Philippine treaties signed prior to the Philippine adherence to the WTO
Agreement, which derogate from Philippine sovereignty and (2) copies
of the multi-volume WTO Agreement and other documents mentioned
in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor
General submitted a printed copy of the 36-volume Uruguay Round of Multilateral
Trade Negotiations, and in another Compliance dated October 24, 1996, he listed
the various "bilateral or multilateral treaties or international instruments involving
derogation of Philippine sovereignty." Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as
follows:
A. Whether the petition presents a political question or is otherwise not
justiciable.
B. Whether the petitioner members of the Senate who participated in
the deliberations and voting leading to the concurrence are estopped
from impugning the validity of the Agreement Establishing the World
Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World
Trade Organization contravene the provisions of Sec. 19, Article II, and
Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty

specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is "vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction when
they voted for concurrence in the ratification of the constitutionallyinfirm 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 petitionermembers of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the
Senate acted in grave abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing notwithstanding, this Court
resolved to deal with these three issues thus:

(1) The "political question" issue being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents' favor, will not cause the
petition's dismissal as there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues
raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION
INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH
THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an
action of the legislative branch is seriously alleged to have infringed the Constitution,
it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." 12 Once a
"controversy as to the application or interpretation of a constitutional provision is
raised before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is
clearly set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law. 16 As
explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as
to constitute an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at
all in holding that this petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition andmandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will
not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
government's economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise
its constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in
ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution
mandating "economic nationalism" are violated by the so-called "parity provisions"
and "national treatment" clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions and Declarations
and in the Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II,
and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
xxx xxx xxx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
Sec. 10. . . . The Congress shall enact measures that will encourage
the formation and operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos.
xxx xxx xxx
Sec. 12. The State shall promote the preferential use of Filipino labor,
domestic materials and locally produced goods, and adopt measures
that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the
following WTO provisions quoted in their memorandum: 19

a) In the area of investment measures related to trade in goods

(TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under
GATT 1994, no Member shall apply any TRIM that is
inconsistent with the provisions of Article II or Article XI of
GATT 1994.
2. An illustrative list of TRIMS that are inconsistent with
the obligations of general elimination of quantitative
restrictions provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to this Agreement."
(Agreement on Trade-Related Investment Measures, Vol.
27, Uruguay Round, Legal Instruments, p. 22121,
emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those
which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain
an advantage, and which require:
(a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of
volume or value of products, or in terms of proportion of
volume or value of its local production; or
(b) that an enterprise's purchases or use of imported
products be limited to an amount related to the volume or
value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1 of
Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which
restrict:

(a) the importation by an enterprise of products used in or

related to the local production that it exports;
(b) the importation by an enterprise of products used in or
related to its local production by restricting its access to
foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value
of its local production. (Annex to the Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
The products of the territory of any contracting party
imported into the territory of any other contracting
party shall be accorded treatment no less favorable than
that accorded to like products of national origin in respect
of laws, regulations and requirements affecting their
internal sale, offering for sale, purchase, transportation,
distribution or use, the provisions of this paragraph shall
not prevent the application of differential internal
transportation charges which are based exclusively on
the economic operation of the means of transport and not
on the nationality of the product." (Article III, GATT 1947,
as amended by the Protocol Modifying Part II, and Article
XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in
relation to paragraph 1(a) of the General Agreement on
Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights
(TRIPS, for brevity):
Each Member shall accord to the nationals of other
Members treatment no less favourable than that it
accords to its own nationals with regard to the protection
of intellectual property. . . (par. 1 Article 3, Agreement on
Trade-Related Aspect of Intellectual Property rights, Vol.
31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment

1. In the sectors inscribed in its schedule, and subject to

any conditions and qualifications set out therein, each
Member shall accord to services and service suppliers of
any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than
it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by
according to services and service suppliers of any other
Member, either formally suppliers of any other Member,
either formally identical treatment or formally different
treatment to that it accords to its own like services and
service suppliers.
3. Formally identical or formally different treatment shall
be considered to be less favourable if it modifies the
conditions of completion in favour of services or service
suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII,
General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p. 22610 emphasis
supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions"
of the WTO Agreement "place nationals and products of member countries on the
same footing as Filipinos and local products," in contravention of the "Filipino First"
policy of the Constitution. They allegedly render meaningless the phrase "effectively
controlled by Filipinos." The constitutional conflict becomes more manifest when
viewed in the context of the clear duty imposed on the Philippines as a WTO
member to ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed agreements. 20 Petitioners
further argue that these provisions contravene constitutional limitations on the role
exports play in national development and negate the preferential treatment accorded
to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that
these nationalistic portions of the Constitution invoked by petitioners should not be
read in isolation but should be related to other relevant provisions of Art. XII,
particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do
not conflict with Constitution; and (4) that the WTO Agreement contains sufficient
provisions to protect developing countries like the Philippines from the harshness of
sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing

By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The counterpart of this article in the 1935 Constitution 21 is called the "basic
political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II
are not intended to be self-executing principles ready for enforcement through the
courts. 23 They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of laws. As held in
the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections of Article XII are not "selfexecuting provisions, the disregard of which can give rise to a cause of action in the
courts. They do not embody judicially enforceable constitutional rights but guidelines
for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles
need legislative enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal
Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13
(Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these
are merely statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not
intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the
legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy
was not judicial but political. The electorate could express
their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas,
Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board
constitutional principles are sourced from basic considerations of due process and
the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in his concurring
opinion inOposa vs. Factoran, Jr., 26 explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution that is or may be violated by the actions, or failures to
act, imputed to the public respondent by petitioners so that the trial
court can validly render judgment grating all or part of the relief prayed
for. To my mind, the court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution
and the existence of the Philippine Environment Code, and that the trial

court should have given petitioners an effective opportunity so to

demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this
matter.
The second is a broader-gauge consideration where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception of
judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and
healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to
special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are
shown to exist, then the policy making departments the legislative
and executive departments must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down
general principles relating to the national economy and patrimony, should be read

and understood in relation to the other sections in said article, especially Secs. 1 and
13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to
raising the quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries
that make full and efficient use of human and natural resources, and
which are competitive in both domestic and foreign markets. However,
the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions
of the country shall be given optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of
rights, privileges and concessions covering the national economy and
patrimony" 27 and in the use of "Filipino labor, domestic materials and locallyproduced goods"; (2) by mandating the State to "adopt measures that help make
them competitive; 28 and (3) by requiring the State to "develop a self-reliant and
independent national economy effectively controlled by Filipinos." 29 In similar
language, the Constitution takes into account the realities of the outside world as it
requires the pursuit of "a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and
speaks of industries "which are competitive in both domestic and foreign markets" as
well as of the protection of "Filipino enterprises againstunfair foreign competition and
trade practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., 31 this Court held that "Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rule for its enforcement.
From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the constitutional provision
itself states, it is enforceable only in regard to "the grants of rights, privileges and
concessions covering national economy and patrimony" and not to every aspect of
trade and commerce. It refers to exceptions rather than the rule. The issue here is
not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the
issue is whether, as a rule, there are enough balancing provisions in the Constitution
to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And
we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. 32 In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and investments into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of equality
and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each member's vote equal in weight to that of any
other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions
of the Ministerial Conference and the General Council shall be taken by
the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require
three fourths vote. Amendments would require two thirds vote in
general. Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from
the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted in law. Thus, the basic principles

underlying the WTO Agreement recognize the need of developing countries like the
Philippines to "share in the growth in international tradecommensurate with the
needs of their economic development." These basic principles are found in the
preamble34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the objective of
sustainable development, seeking both to protect and preserve the
environment and to enhance the means for doing so in a manner
consistent with their respective needs and concerns at different levels
of economic development,
Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed
among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and durable
multilateral trading system encompassing the General Agreement on
Tariffs and Trade, the results of past trade liberalization efforts, and all
of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, . . . (emphasis
supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within
a period of six (6) years while developing countries including the Philippines
are required to effect an average tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce

domestic support to agricultural products by 20% over six (6) years, as compared
to only 13% for developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed
countries to reduce their budgetary outlays for export subsidy by 36% and export
volumes receiving export subsidy by 21% within a period of six (6) years. For
developing countries, however, the reduction rate is only two-thirds of that prescribed
for developed countries and a longer period of ten (10) years within which to effect
such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition
and trade practices including anti-dumping measures, countervailing measures and
safeguards against import surges. Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these measures. There is hardly
therefore any basis for the statement that under the WTO, local industries and
enterprises will all be wiped out and that Filipinos will be deprived of control of the
economy. Quite the contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no basis to say that
in joining the WTO, the respondents have gravely abused their discretion. True, they
have made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside on the ground of
grave abuse of discretion, simply because we disagree with it or simply because we
believe only in other economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will only perform its constitutional duty of
determining whether the Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" 35 does not necessarily rule out the entry of foreign investments, goods
and services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country
that is keenly aware of overdependence on external assistance for
even its most basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries
as in the development of natural resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without
discrimination" cannot be struck down as unconstitutional as in fact they are rules of
equality and reciprocity that apply to all WTO members. Aside from envisioning a
trade policy based on "equality and reciprocity," 37 the fundamental law encourages
industries that are "competitive in both domestic and foreign markets," thereby

demonstrating a clear policy against a sheltered domestic trade environment, but

one in favor of the gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises
have shown capability and tenacity to compete internationally. And given a free trade
environment, Filipino entrepreneurs and managers in Hongkong have demonstrated
the Filipino capacity to grow and to prosper against the best offered under a policy
of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business
or enterprise, nor does it contain any specific pronouncement that Filipino companies
should be pampered with a total proscription of foreign competition. On the other
hand, respondents claim that WTO/GATT aims to make available to the Filipino
consumer the best goods and services obtainable anywhere in the world at the most
reasonable prices. Consequently, the question boils down to whether WTO/GATT
will favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to
reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will
as promised by its promoters expand the country's exports and generate more
employment?
Will it bring more prosperity, employment, purchasing power and quality products at
the most reasonable rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for
which they are answerable to our people during appropriate electoral exercises.
Such questions and the answers thereto are not subject to judicial pronouncements
based on grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was
drafted and ratified in 1987. That does not mean however that the Charter is
necessarily flawed in the sense that its framers might not have anticipated the
advent of a borderless world of business. By the same token, the United Nations was
not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have contemplated a
diminution of the absoluteness of sovereignty when the Philippines signed the UN
Charter, thereby effectively surrendering part of its control over its foreign relations to
the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only
the vagaries of contemporary events. They should be interpreted to cover even
future and unknown circumstances. It is to the credit of its drafters that a Constitution

can withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist 38 explains:
The Constitution must be quintessential rather than superficial, the root
and not the blossom, the base and frame-work only of the edifice that
is yet to rise. It is but the core of the dream that must take shape, not in
a twinkling by mandate of our delegates, but slowly "in the crucible of
Filipino minds and hearts," where it will in time develop its sinews and
gradually gather its strength and finally achieve its substance. In fine,
the Constitution cannot, like the goddess Athena, rise full-grown from
the brow of the Constitutional Convention, nor can it conjure by mere
fiat an instant Utopia. It must grow with the society it seeks to restructure and march apace with the progress of the race, drawing from
the vicissitudes of history the dynamism and vitality that will keep it, far
from becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in
the annexed Agreements." 39 Petitioners maintain that this undertaking "unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative power which
under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress
of the Philippines. It is an assault on the sovereign powers of the Philippines
because this means that Congress could not pass legislation that will be good for our
national interest and general welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods . . . but also to the flow of
investments and money . . . as well as to a whole slew of agreements on sociocultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress. 41 And while the Constitution allows
Congress to authorize the President to fix tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts, such authority is subject to
"specified limits and . . . such limitations and restrictions" as Congress may
provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies, the Constitution "adopts the
generally accepted principles of international law as part of the law of the land, and

adheres to the policy of peace, equality, justice, freedom, cooperation and amity,
with all nations." 43 By the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be automatically
part of our own laws. 44 One of the oldest and most fundamental rules in international
law is pacta sunt servanda international agreements must be performed in good
faith. "A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a convention
or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse matters as, for example,
the lease of naval bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations.46 The
sovereignty of a state therefore cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations imposed by the very nature
of membership in the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny
alone. The age of self-sufficient nationalism is over. The age of interdependence is
here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the "concept of
sovereignty as auto-limitation." 47-A Under Article 2 of the UN Charter, "(a)ll members
shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action." Such
assistance includes payment of its corresponding share not merely in administrative
expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their
own territory. Another example: although "sovereign equality" and "domestic
jurisdiction" of all members are set forth as underlying principles in the UN Charter,

such provisos are however subject to enforcement measures decided by the

Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a
conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their
obligation under the present charter shall prevail," thus unquestionably denying the
Philippines as a member the sovereign power to make a choice as to which of
conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international
pacts both bilateral and multilateral that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt from
tax, income received in the Philippines by, among others, the Federal
Reserve Bank of the United States, the Export/Import Bank of the
United States, the Overseas Private Investment Corporation of the
United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and
personal services performed by them as employees or officials of the
United States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance
of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of
double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines
agreed to exempt from all customs duties, inspection fees and other
duties or taxes aircrafts of South Korea and the regular equipment,
spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines
agreed to exempt from customs duties, excise taxes, inspection fees
and other similar duties, taxes or charges fuel, lubricating oils, spare
parts, regular equipment, stores on board Japanese aircrafts while on
Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines
granted Belgian air carriers the same privileges as those granted to
Japanese and Korean air carriers under separate air service
agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas
where the Philippines exempted Israeli nationals from the requirement
of obtaining transit or visitor visas for a sojourn in the Philippines not
exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from
the requirement of obtaining transit and visitor visa for a sojourn not
exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines
agreed that premises of Special Missions in the Philippines are
inviolable and its agents can not enter said premises without consent of
the Head of Mission concerned. Special Missions are also exempted
from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention,
the Philippines agreed to be governed by the Vienna Convention on
the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court
of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the
existence of any fact which, if established, would constitute a breach
"of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of
its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of
the other contracting states in granting the same privilege and immunities to the
Philippines, its officials and its citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human
rights, the environment, the law of the sea, or trade, constrain domestic
political sovereignty through the assumption of external obligations. But
unless anarchy in international relations is preferred as an alternative,
in most cases we accept that the benefits of the reciprocal obligations
involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to
durable, well-defined substantive norms and objective dispute
resolution procedures reduce the risks of larger countries exploiting
raw economic power to bully smaller countries, by subjecting power
relations to some form of legal ordering. In addition, smaller countries
typically stand to gain disproportionately from trade liberalization. This
is due to the simple fact that liberalization will provide access to a
larger set of potential new trading relationship than in case of the larger
country gaining enhanced success to the smaller country's market. 48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
"adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) 49 intrudes on the power of the Supreme Court to promulgate rules
concerning pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS,
restate its full text as follows:

51

it will be fruitful to

Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement
of the rights of the owner referred to in paragraph 1 (b) of Article 28, if
the subject matter of a patent is a process for obtaining a product, the
judicial authorities shall have the authority to order the defendant to
prove that the process to obtain an identical product is different from
the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence
of proof to the contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical
product was made by the process and the owner of the
patent has been unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall
be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the
words "in the absence of proof to the contrary") presumption that a product shown to
be identical to one produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented process, (1) where such

product obtained by the patented product is new, or (2) where there is "substantial
likelihood" that the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact process used in
obtaining such identical product. Hence, the "burden of proof" contemplated by
Article 34 should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually refers to
the "burden of evidence" (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the use of
the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner
still has to introduce evidence of the existence of the alleged identical product, the
fact that it is "identical" to the genuine one produced by the patented process and the
fact of "newness" of the genuine product or the fact of "substantial likelihood" that the
identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as
the present law on the subject, Republic Act No. 165, as amended, otherwise known
as the Patent Law, provides a similar presumption in cases of infringement of
patented design or utility model, thus:
Sec. 60. Infringement. Infringement of a design patent or of a patent
for utility model shall consist in unauthorized copying of the patented
design or utility model for the purpose of trade or industry in the article
or product and in the making, using or selling of the article or product
copying the patented design or utility model. Identity or substantial
identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process in NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing
the provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue derogation of legislative power will apply to this fourth issue also. Suffice
it to say that the reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it
is with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of
procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes but not in the other documents referred to in the Final Act, namely the
Ministerial Declaration and Decisions and the Understanding on Commitments in
Financial Services is defective and insufficient and thus constitutes abuse of
discretion. They submit that such concurrence in the WTO Agreement alone is
flawed because it is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of the President to the
Senate 53 which enumerated what constitutes the Final Act should have been the
subject of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the conference." 54 It is
not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the "Final
Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations"
is contained in just one page 55 in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as
representative of the Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration
of their respective competent authorities with a view to seeking
approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the
Final Act required from its signatories, namely, concurrence of the Senate in the
WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in
Marrakesh does not apply to the Philippines. It applies only to those 27 Members
which "have indicated in their respective schedules of commitments on standstill,
elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information,
and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business." 57

On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the
conduct of trade relations among its Members in matters to the
agreements and associated legal instruments included in the Annexes
to this Agreement.
2. The Agreements and associated legal instruments included in
Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included in Annex
4 (hereinafter referred to as "Plurilateral Trade Agreements") are also
part of this Agreement for those Members that have accepted them,
and are binding on those Members. The Plurilateral Trade Agreements
do not create either obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as "GATT 1994") is legally distinct
from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members' deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Taada that what
was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw upon understanding that
his suggestion for an alternative solution at that time was acceptable.
That suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a

new . . . is he making a new submission which improves on the clarity
of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and
there should be no misunderstanding, it was his intention to clarify all
matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator
Tolentino since they were the ones that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly
appear that what is being submitted to the Senate for ratification is not
the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and
Decisions, and the Understanding and Commitments in Financial
Services.
I am now satisfied with the wording of the new submission of President
Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and
Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission
actually transmitted to us but I saw the draft of his earlier, and I think it
now complies with the provisions of the Constitution, and with the Final
Act itself . The Constitution does not require us to ratify the Final Act. It
requires us to ratify the Agreement which is now being submitted. The
Final Act itself specifies what is going to be submitted to with the
governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to
submit as appropriate the WTO Agreement for the consideration of the
respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to
the governments for ratification or acceptance as whatever their

constitutional procedures may provide but it is the World Trade

Organization Agreement. And if that is the one that is being submitted
now, I think it satisfies both the Constitution and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator
Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already
a matter of record. And they had been adequately reflected in the
journal of yesterday's session and I don't see any need for repeating
the same.
Now, I would consider the new submission as an act ex abudante
cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you
want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by
Senator Gonzales out of the abundance of question. Then the new
submission is, I believe, stating the obvious and therefore I have no
further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Court's constitutionally imposed duty "to determine
whether or not there has been grave abuse of discretion amounting to lack or excess
of jurisdiction" on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in
the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. 62 Failure
on the part of the petitioner to show grave abuse of discretion will result in the
dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate, whose act is
under review, is one of two sovereign houses of Congress and is thus entitled to
great respect in its actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such

presumptions, this Court will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senate's processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senate's exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the
State to develop an independent national economy effectively controlled by Filipinos;
and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles while serving as judicial
and legislative guides are not in themselves sources of causes of action.
Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a "trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality
and reciprocity" and the promotion of industries "which are competitive in both
domestic and foreign markets," thereby justifying its acceptance of said treaty. So
too, the alleged impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution
to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it "a part of the law of the land" is
a legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such
exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to nullify its decision.
To do so would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its authority. As to
whether such exercise was wise, beneficial or viable is outside the realm of judicial
inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance 65 where "the East will become the dominant region of the world
economically, politically and culturally in the next century." He refers to the "free
market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There
are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible
limitations on national sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade
law. The alternative to WTO is isolation, stagnation, if not economic self-destruction.
Duly enriched with original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and endowed with a vision

of the future, the Philippines now straddles the crossroads of an international

strategy for economic prosperity and stability in the new millennium. Let the people,
through their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN

BELTRAN, and Rep. LIZA L. MAZA,Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F.
OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and
seeks to nullify the Non-Surrender Agreement concluded by and between the
Republic of the Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent
the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was
the Secretary of Foreign Affairs during the period material to this case. Respondent
Alberto Romulo was impleaded in his capacity as then Executive Secretary. 2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute 3 establishing
the International Criminal Court (ICC) with "the power to exercise its jurisdiction over
persons for the most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions."4 The serious crimes adverted

to cover those considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.5
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or
approval" by the signatory states.6 As of the filing of the instant petition, only 92 out
of the 139 signatory countries appear to have completed the ratification, approval
and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note
No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and
put in effect the Agreement with the US government. In esse, the Agreement aims to
protect what it refers to and defines as "persons" of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals. 8 It
is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have
been effected by and between the US and 33 other countries. 9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or former
Government officials, employees (including contractors), or military personnel
or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent
the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or
third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of
the Philippines to a third country, the [US] will not agree to the surrender or
transfer of that person by the third country to any international tribunal, unless
such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of

the [USA] to a third country, the [GRP] will not agree to the surrender or
transfer of that person by the third country to any international tribunal, unless
such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which
one party notifies the other of its intent to terminate the Agreement. The
provisions of this Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of
the non-surrender agreement, Ambassador Ricciardone replied in his letter of
October 28, 2003 that the exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the said agreement did
not require the advice and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying theAgreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not
require Senate concurrence for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x
GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON
SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY
SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS
PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely
abused their discretion when they capriciously abandoned, waived and
relinquished our only legitimate recourse through the Rome Statute of
the [ICC] to prosecute and try "persons" as defined in the x x
x Agreement, x x x or literally any conduit of American interests, who
have committed crimes of genocide, crimes against humanity, war
crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.
B. Whether after the signing and pending ratification of the Rome
Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x
are obliged by the principle of good faith to refrain from doing all acts
which would substantially impair the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the

object and purpose of theRome Statute of the International Criminal
Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreement is
void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and
unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB
INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL
OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED
PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS
(2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of
whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the
Senate for concurrence, contravenes and undermines the Rome Statute and other
treaties. But because respondents expectedly raised it, we shall first tackle the issue
of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the
validity or invalidity of theAgreement carries with it constitutional significance and is
of paramount importance that justifies its standing. Cited in this regard is what is
usually referred to as the emergency powers cases,12 in which ordinary citizens and
taxpayers were accorded the personality to question the constitutionality of executive
issuances.
Locus standi is "a right of appearance in a court of justice on a given
question."13 Specifically, it is "a partys personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result"14 of the act being
challenged, and "calls for more than just a generalized grievance."15 The term
"interest" refers to material interest, as distinguished from one that is merely
incidental.16 The rationale for requiring a party who challenges the validity of a law or
international agreement to allege such a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which sharpens the presentation

of issues upon which the court so largely depends for illumination of difficult
constitutional questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized
that, in some cases, suits are not brought by parties who have been personally
injured by the operation of a law or any other government act, but by concerned
citizens, taxpayers, or voters who actually sue in the public interest.18 Consequently,
in a catena of cases,19 this Court has invariably adopted a liberal stance on locus
standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic
and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action,
a petitioner needs to meet certain specific requirements before he can be clothed
with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.20 expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of
a statute must be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person complaining
has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of. In fine, when the proceeding involves the assertion
of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.21
In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens,
their interest in the subject matter of the petition is direct and personal. At the very
least, their assertions questioning the Agreement are made of a public right, i.e., to
ascertain that the Agreement did not go against established national policies,
practices, and obligations bearing on the States obligation to the community of
nations.
At any event, the primordial importance to Filipino citizens in general of the issue at
hand impels the Court to brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line of earlier cases, notably
in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona,
Jr.23In cases of transcendental importance, we wrote again in Bayan v.
Zamora,24 "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."

Moreover, bearing in mind what the Court said in Taada v. Angara, "that 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,"25 we cannot but resolve head on the issues raised before us.
Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not
only the right but in fact the duty of the judiciary to settle it. As in this petition, issues
are precisely raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding
the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the
doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international law
and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls
"into the category of inter-governmental agreements,"27 which is an internationally
accepted form of international agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.28
In another perspective, the terms "exchange of notes" and "executive agreements"
have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action. 29 On the other
hand, executive agreements concluded by the President "sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols."30 As former US High Commissioner to the Philippines
Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of
notes or otherwise begin, may sometimes be difficult of ready ascertainment.31 x x
x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be boundis a recognized mode of concluding a legally
binding international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an
international agreement 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."32 International agreements may
be in the form of (1) treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33
Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states
concerned,34 as long as the negotiating functionaries have remained within their
powers.35 Neither, on the domestic sphere, can one be held valid if it violates the
Constitution.36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect.37 As has been
observed by US constitutional scholars, a treaty has greater "dignity" than an
executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people; 38 a
ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate.
Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in
which the Court reproduced the following observations made by US legal scholars:
"[I]nternational agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent character usually
take the form of treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving arrangements of
a more or less temporary nature take the form of executive agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that are enumerated in the Eastern Sea
Trading case, and that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and settlement of
claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,41holding that an executive agreement through an exchange
of notes cannot be used to amend a treaty.
We are not persuaded.

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. There are no
hard and fast rules on the propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties intent and desire
to craft an international agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt
servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law wider, as to include such
subjects as human rights, the environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980 to 2000 covered subjects
such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among
others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe the
option of each state on the matter of which the international agreement format would
be convenient to serve its best interest. As Francis Sayre said in his work referred to
earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade-agreement act, have
been negotiated with foreign governments. x x x They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission
of civil air craft, custom matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or
a treaty-implementing executive agreement,45 which necessarily would cover the
same matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution 46when
a treaty is required, the Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot
be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed,
an executive agreement that does not require the concurrence of the Senate for its
ratification may not be used to amend a treaty that, under the Constitution, is the
product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not
obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third
main issue raised, referring to the validity and effectivity of the Agreement without
the concurrence by at least two-thirds of all the members of the Senate. The Court
has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the
obligatory effect of executive agreements without the concurrence of the Senate:
x x x [T]he 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 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.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the
establishment of the ICC and is null and void insofar as it unduly restricts the ICCs
jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits
that the Agreement was constituted solely for the purpose of providing individuals or
groups of individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that state parties with
non-surrender agreements are prevented from meeting their obligations under the
Rome Statute, thereby constituting a breach of Arts. 27, 50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to
ensure that those responsible for the worst possible crimes are brought to justice in
all cases, primarily by states, but as a last resort, by the ICC; thus, any agreement
like the non-surrender agreementthat precludes the ICC from exercising its
complementary function of acting when a state is unable to or unwilling to do so,
defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of
a signatory of the Rome Statute, are obliged by the imperatives of good faith to
refrain from performing acts that substantially devalue the purpose and object of the
Statute, as signed. Adding a nullifying ingredient to the Agreement, according to
petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a
priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity
underpins the creation of the ICC. As aptly pointed out by respondents and admitted
by petitioners, the jurisdiction of the ICC is to "be complementary to national criminal
jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute pertinently
provides:
Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall

have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and functioning
of the Court shall be governed by the provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is
the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes." This provision indicates that primary jurisdiction over the socalled international crimes rests, at the first instance, with the state where the crime
was committed; secondarily, with the ICC in appropriate situations contemplated
under Art. 17, par. 155 of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a
state vis-a-vis that of the ICC. As far as relevant, the provision states that "no person
who has been tried by another court for conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect to the
same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the
idea of jurisdictional conflict between the Philippines, as party to the non-surrender
agreement, and the ICC; or the idea of the Agreement substantially impairing the
value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact
that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear
to us that the Rome Statute expressly recognizes the primary jurisdiction of states,
like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and
breached its commitment under the Vienna Convention57 to refrain from performing
any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be
rejected outright. For nothing in the provisions of the Agreement, in relation to the
Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the process
require the requested state to perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which
reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international

agreements pursuant to which the consent of a sending State is required to

surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from acts which would defeat the
object and purpose of a treaty;58 whereas a State-Party, on the other hand, is legally
obliged to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is
only obliged to refrain from acts which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines to follow any provision in the
treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically
Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon StateParties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the
requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall
give priority to the request for surrender from the Court. x x x" In applying the
provision, certain undisputed facts should be pointed out: first, the US is neither a
State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition or
surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States
is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who commit serious crimes of
international concerns in the Philippines. Formulating petitioners argument a bit
differently, the RP, by entering into the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving or abandoning its right to seek
recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National criminal
jurisdiction being primary, as explained above, it is always the responsibility and
within the prerogative of the RP either to prosecute criminal offenses equally covered
by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines

may decide to try "persons" of the US, as the term is understood in the Agreement,
under our national criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US "persons" committing high crimes in the
country and defer to the secondary criminal jurisdiction of the ICC over them. As to
"persons" of the US whom the Philippines refuses to prosecute, the country would, in
effect, accord discretion to the US to exercise either its national criminal jurisdiction
over the "person" concerned or to give its consent to the referral of the matter to the
ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to "persons" of the RP committing high crimes within US
territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can
agree to waive jurisdictionto the extent agreed uponto subjects of another State
due to the recognition of the principle of extraterritorial immunity. What the Court
wrote inNicolas v. Romulo59a case involving the implementation of the criminal
jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to longrecognized subjects of such immunity like Heads of State, diplomats and members
of the armed forces contingents of a foreign State allowed to enter another States
territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated
on the postulate that some of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not
envision a reclusive Philippines isolated from the rest of the world. It even adheres,
as earlier stated, to the policy of cooperation and amity with all nations. 60
By their nature, treaties and international agreements actually have a limiting effect
on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other. On the rationale that
the Philippines has adopted the generally accepted principles of international law as
part of the law of the land, a portion of sovereignty may be waived without violating
the Constitution.61 Such waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, "leaves criminals immune from

responsibility for unimaginable atrocities that deeply shock the conscience of

humanity; x x x it precludes our country from delivering an American criminal to the
[ICC] x x x."63
The above argument is a kind of recycling of petitioners earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in the process undermined its treaty obligations under
the Rome Statute, contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, "is an assertion by the
Philippines of its desire to try and punish crimes under its national law. x x x The
agreement is a recognition of the primacy and competence of the countrys judiciary
to try offenses under its national criminal laws and dispense justice fairly and
judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party, which may
desire to prosecute the crime under its existing laws. With the view we take of things,
there is nothing immoral or violative of international law concepts in the act of the
Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in
the Agreement. And without specifically saying so, petitioner would argue that the
non-surrender agreement was executed by the President, thru the DFA Secretary, in
grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of
petitioner, the same having been discussed at length earlier on. As to the second
portion, We wish to state that petitioner virtually faults the President for performing,
through respondents, a task conferred the President by the Constitutionthe power
to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of
state and government, is the sole organ and authority in the external affairs of the
country.65 The Constitution vests in the President the power to enter into
international agreements, subject, in appropriate cases, to the required concurrence
votes of the Senate. But as earlier indicated, executive agreements may be validly
entered into without such concurrence. As the President wields vast powers and

influence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution. At
the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and exercise a
prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other
issues raised herein, it may perhaps be pertinent to remind all and sundry that about
the time this petition was interposed, such issue of ratification was laid to rest
in Pimentel, Jr. v. Office of the Executive Secretary.67 As the Court emphasized in
said case, the power to ratify a treaty, the Statute in that instance, rests with the
President, subject to the concurrence of the Senate, whose role relative to the
ratification of a treaty is limited merely to concurring in or withholding the ratification.
And concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court
hastened to add, is the Presidents alone and cannot be encroached upon via a writ
of mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute. Under Art. 12569 thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)
9851, otherwise known as the "Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA
9851, particularly the second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines to the appropriate international
court, if any, or to another State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the
States obligation in relation to grave crimes against the law of nations, i.e., genocide,
crimes against humanity and war crimes. Relying on the above-quoted statutory
proviso, the view posits that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes defined under RA
9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit:
(1) surrender the accused to the proper international tribunal; or (2) surrender the
accused to another State if such surrender is "pursuant to the applicable extradition
laws and treaties." But the Philippines may exercise these options only in cases
where "another court or international tribunal is already conducting the investigation
or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal
for any crime under RA 9851, the Philippines has the option to surrender such US
national to the international tribunal if it decides not to prosecute such US national
here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is
not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851,
such as requiring the consent of the US before the Philippines can exercise such
option, requires an amendatory law. In line with this scenario, the view strongly
argues that the Agreement prevents the Philippineswithout the consent of the
USfrom surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently,
the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution,
where the Philippines adopts, as a national policy, the "generally accepted principles
of international law as part of the law of the land," the Court is further impressed to
perceive the Rome Statute as declaratory of customary international law. In other
words, the Statute embodies principles of law which constitute customary
international law or custom and for which reason it assumes the status of an
enforceable domestic law in the context of the aforecited constitutional provision. As
a corollary, it is argued that any derogation from the Rome Statute principles cannot
be undertaken via a mere executive agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot amend or repeal, an existing law.
The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view
does not clearly state what precise principles of law, if any, theAgreement alters. And
for a third, it does not demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of the
US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory
states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity; 70 (2)
provides penal sanctions and criminal liability for their commission;71 and (3)
establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that
goes against the tenor of theAgreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal
those persons accused of crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not entirely correct, for
the above quoted proviso clearly provides discretion to the Philippine State on
whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory construction
that the word "may" denotes discretion, and cannot be construed as having
mandatory effect.73Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.1avvphi1
Besides, even granting that the surrender of a person is mandatorily required when
the Philippines does not exercise its primary jurisdiction in cases where "another
court or international tribunal is already conducting the investigation or undertaking
the prosecution of such crime," still, the tenor of the Agreement is not repugnant to
Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be
made "to another State pursuant to the applicable extradition laws and treaties." The
Agreement can already be considered a treaty following this Courts decision in
Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an
executive agreement is a treaty within the meaning of that word in international law
and constitutes enforceable domestic law vis--vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e.,
RP-US Extradition Treaty, which was executed on November 13, 1994. The
pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued
on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda77 is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office
of the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network
Project, thus rendering the petition moot. In resolving the case, the Court took

judicial notice of the act of the executive department of the Philippines (the President)
and found the petition to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that "an executive agreement has
the force and effect of law x x x [it] cannot amend or repeal prior laws." 78 Hence, this
argument finds no application in this case seeing as RA 9851 is a subsequent law,
not a prior one. Notably, this argument cannot be found in the ratio decidendi of the
case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA
9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n
offense shall be an extraditable offense if it is punishable under the laws in both
Contracting Parties x x x,"79 and thereby concluding that while the Philippines has
criminalized under RA 9851 the acts defined in the Rome Statute as war crimes,
genocide and other crimes against humanity, there is no similar legislation in the US.
It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in
the federal courts for an international crime unless Congress adopts a law defining
and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law
criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United
States Code Annotated (USCA) provides for the criminal offense of "war crimes"
which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits
a war crime, in any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of years, or both, and if
death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that
the person committing such war crime or the victim of such war crime is a
member of the Armed Forces of the United States or a national of the United
States (as defined in Section 101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term "war crime" means any
conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such convention
to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague
Convention IV, Respecting the Laws and Customs of War on Land,
signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined

in subsection [d]) when committed in the context of and in association
with an armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3 May 1996), when the United
States is a party to such Protocol, willfully kills or causes serious injury
to civilians.801avvphi1
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace or in time of war
and with specific intent to destroy, in whole or in substantial part, a national,
ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of
members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause
the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not
cover every crime listed within the jurisdiction of the ICC and that there is a gap
between the definitions of the different crimes under the US laws versus the Rome
Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas,
entitled "On Trial: The US Military and the International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have any weight
or value under international law. Article 38 of the Statute of the International Court of
Justice (ICJ) lists the sources of international law, as follows: (1) international
conventions, whether general or particular, establishing rules expressly recognized
by the contesting states; (2) international custom, as evidence of a general practice
accepted as law; (3) the general principles of law recognized by civilized nations;
and (4) subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law. The report does not fall under any of the foregoing

enumerated sources. It cannot even be considered as the "teachings of highly

qualified publicists." A highly qualified publicist is a scholar of public international law
and the term usually refers to legal scholars or "academic writers."82 It has not been
shown that the authors83 of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the
definitions of the crimes are nonexistent. To highlight, the table below shows the
definitions of genocide and war crimes under the Rome Statute vis--vis the
definitions under US laws:
Rome Statute
Article 6
Genocide
For the purpose of this Statute,
"genocide" means any of the following
acts committed with intent to destroy, in
whole or in part, a national, ethnical,
racial or religious group, as such:

US Law
1091. Genocide
(a) Basic Offense Whoever,
whether in the time of peace or in
time of war and with specific
intent to destroy, in whole or in
substantial part, a national,
ethnic, racial or religious group
as such

(a) Killing members of the group;

(b) Causing serious bodily or
mental harm to members of the
group;
(c) Deliberately inflicting on the
group conditions of life calculated
to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended
to prevent births within the group;
(e) Forcibly transferring children
of the group to another group.

(1) kills members of that

group;
(2) causes serious bodily
injury to members of that
group;
(3) causes the permanent
impairment of the mental
faculties of members of
the group through drugs,
torture, or similar
techniques;
(4) subjects the group to
conditions of life that are
intended to cause the
physical destruction of the
group in whole or in part;
(5) imposes measures
intended to prevent births
within the group; or
(6) transfers by force
children of the group to
another group;

shall be punished as provided in

subsection (b).
Article 8
War Crimes
2. For the purpose of this
Statute, "war crimes" means:
(a) Grave breaches of the
Geneva Conventions of
12 August 1949, namely,
any of the following acts
against persons or
property protected under
the provisions of the
relevant Geneva
Convention: x x x84
(b) Other serious
violations of the laws and
customs applicable in
international armed
conflict, within the
established framework of
international law, namely,
any of the following acts:

(d) Definition As used in this

Section the term "war crime"
means any conduct
(1) Defined as a grave breach in
any of the international
conventions signed at Geneva
12 August 1949, or any protocol
to such convention to which the
United States is a party;
(2) Prohibited by Article 23, 25,
27 or 28 of the Annex to the
Hague Convention IV,
Respecting the Laws and
Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d]85) when
committed in the context of and
in association with an armed
conflict not of an international
character; or

xxxx
(c) In the case of an
armed conflict not of an
international character,
serious violations of article
3 common to the four
Geneva Conventions of
12 August 1949, namely,
any of the following acts
committed against
persons taking no active
part in the hostilities,
including members of
armed forces who have
laid down their arms and
those placed hors de
combat by sickness,
wounds, detention or any
other cause:

(4) Of a person who, in relation

to an armed conflict and contrary
to the provisions of the Protocol
on Prohibitions or Restrictions on
the Use of Mines, Booby-Traps
and Other Devices as amended
at Geneva on 3 May 1996
(Protocol II as amended on 3
May 1996), when the United
States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.86

xxxx
(d) Paragraph 2 (c)
applies to armed conflicts
not of an international
character and thus does
not apply to situations of
internal disturbances and
tensions, such as riots,
isolated and sporadic acts
of violence or other acts of
a similar nature.
(e) Other serious
violations of the laws and
customs applicable in
armed conflicts not of an
international character,
within the established
framework of international
law, namely, any of the
following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not present. In
fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction
of the Court and crimes within the Uniform Code of Military Justice that would
expose US personnel to the Court. Since US military lawyers were instrumental in
drafting the elements of crimes outlined in the Rome Statute, they ensured that most
of the crimes were consistent with those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing
military laws.87 x x x
The report went on further to say that "[a]ccording to those involved, the elements of
crimes laid out in the Rome Statute have been part of US military doctrine for
decades."88 Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows
the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The
Paquete Habana89 case already held international law as part of the law of the US, to
wit:
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as evidence of these, to

the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.90(Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on
the holding in U.S. v. Hudson,92 only applies to common law and not to the law of
nations or international law.93 Indeed, the Court in U.S. v. Hudson only considered
the question, "whether the Circuit Courts of the United States can exercise a
common law jurisdiction in criminal cases."94 Stated otherwise, there is no common
law crime in the US but this is considerably different from international law.
The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute. 95 In fact,
years later, US courts would apply international law as a source of criminal liability
despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte
Quirin96 the US Supreme Court noted that "[f]rom the very beginning of its history
this Court has recognized and applied the law of war as including that part of the law
of nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals."97 It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the law
of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10,
to define and punish the offense since it has adopted by reference the sufficiently
precise definition of international law. x x x Similarly by the reference in the 15th
Article of War to offenders or offenses that x x x by the law of war may be triable by
such military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by the law
of war x x x, and which may constitutionally be included within that jurisdiction.98 x x
x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has
been held that genocide, war crimes and crimes against humanity have attained the
status of customary international law. Some even go so far as to state that these
crimes have attained the status of jus cogens.99
Customary international law or international custom is a source of international law
as stated in the Statute of the ICJ.100 It is defined as the "general and consistent
practice of states recognized and followed by them from a sense of legal
obligation."101 In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; and opinio juris sive
necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.103 It is demonstrated upon the existence of the following elements:
(1) generality; (2) uniformity and consistency; and (3) duration.104 While, opinio juris,
the psychological element, requires that the state practice or norm "be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it."105
"The term jus cogens means the compelling law."106 Corollary, "a jus cogens norm
holds the highest hierarchical position among all other customary norms and
principles."107 As a result, jus cogens norms are deemed "peremptory and nonderogable."108 When applied to international crimes, "jus cogens crimes have been
deemed so fundamental to the existence of a just international legal order that states
cannot derogate from them, even by agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any
state may exercise jurisdiction over an individual who commits certain heinous and
widely condemned offenses, even when no other recognized basis for jurisdiction
exists."110 "The rationale behind this principle is that the crime committed is so
egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the
crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it
still has both the doctrine of incorporation and universal jurisdiction to try these
crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal,
found in the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to
be obtaining as reflected in this simple reality: As of October 12, 2010, only
114114 States have ratified the Rome Statute, subsequent to its coming into force
eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of
194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute
casts doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does
not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8)
years have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means "a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris] x x x." This
statement contains the two basic elements of custom: the material factor, that is how

the states behave, and the psychological factor or subjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave
the way they do because they consider it obligatory to behave thus or do they do it
only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without it, practice is not
law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally
recognized crimes of genocide, etc. should be handled by a particular international
criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the
psychological element must be deemed non-existent, for an inquiry on why states
behave the way they do presupposes, in the first place, that they are actually
behaving, as a matter of settled and consistent practice, in a certain manner. This
implicitly requires belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.117Like the first element, the second element
has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the
crimes enumerated therein as evidenced by it requiring State consent.118 Even
further, the Rome Statute specifically and unequivocally requires that: "This Statute
is subject to ratification, acceptance or approval by signatory States."119 These
clearly negate the argument that such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee
on Accountability of Public Officers and Investigations, "[t]he power to enter into an
executive agreement is in essence an executive power. This authority of the
President to enter into executive agreements without the concurrence of the

Legislature has traditionally been recognized in Philippine jurisprudence."120 The

rationale behind this principle is the inviolable doctrine of separation of powers
among the legislative, executive and judicial branches of the government. Thus,
absent any clear contravention of the law, courts should exercise utmost caution in
declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US
Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to
be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby
DISMISSED for lack of merit. No costs.
SO ORDERED.