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G.R No. 187167 July 16, 2011


PROF. MERLIN M. MAGALLONA,
AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. ROQUE,
JR., AND UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA
MAY ALTEZ, FRANCIS ALVIN
ASILO, SHERYL BALOT, RUBY
AMOR BARRACA, JOSE JAVIER
BAUTISTA,
ROMINA BERNARDO, VALERIE PAGASA
BUENAVENTURA, EDAN MARRI CAETE,
VANN ALLEN DELA CRUZ, RENE
DELORINO, PAULYN MAY DUMAN,
SHARON ESCOTO, RODRIGO FAJARDO
III, GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO, ANNA
MARIE CECILIA GO, IRISH KAY KALAW,
MARY ANN JOY LEE, MARIA LUISA
MANALAYSAY,
MIGUEL RAFAEL MUSNGI, MICHAEL
OCAMPO, JAKLYN HANNA PINEDA,
WILLIAM RAGAMAT, MARICAR RAMOS,
ENRIK FORT REVILLAS, JAMES MARK
TERRY RIDON, JOHANN FRANTZ RIVERA
IV, CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO, MARIA
ESTER VANGUARDIA, and MARCELINO
VELOSO III, Petitioners,
- versus HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY,
HON. ALBERTO ROMULO, IN HIS
CAPACITY AS
SECRETARY OF THE DEPARTMENT OF
FOREIGN AFFAIRS, HON. ROLANDO
ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON.
DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO DAVIDE,
JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE
PHILIPPINES TO THE UNITED NATIONS,
Respondents.

x
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DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari
and prohibition assails the constitutionality of
Republic Act No. 95221 (RA 9522) adjusting
the countrys archipelagic baselines and
classifying the baseline regime of nearby
territories.
The Antecedents
In 1961, Congress passed Republic Act No.
3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an
archipelagic State.3 This law followed the
framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958
(UNCLOS I),4codifying, among others, the
sovereign right of States parties over their
territorial sea, the breadth of which,
however, was left undetermined. Attempts to
fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades,
save for legislation passed in 1968 (Republic
Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the
drawing of baselines around Sabah in North
Borneo.
In March 2009, Congress amended RA 3046
by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the
need to make RA 3046 compliant with the
terms of the United Nations Convention on
the Law of the Sea (UNCLOS III),5 which the
Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes
the water-land ratio, length, and contour of
baselines of archipelagic States like the
Philippines7 and sets the deadline for the
filing of application for the extended
continental shelf.8Complying with these
requirements, RA 9522 shortened one
baseline, optimized the location of some
basepoints around the Philippine archipelago

Petitioners, professors of law, law students


and a legislator, in their respective capacities
as citizens, taxpayers or x x x legislators, 9 as
the case may be, assail the constitutionality
of RA 9522 on two principal grounds, namely:
(1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the
Philippine states sovereign power, in
violation of Article 1 of the 1987
Constitution,10 embodying the terms of the
Treaty of Paris11 and ancillary treaties,12 and
(2) RA 9522 opens the countrys waters
landward of the baselines to maritime
passage by all vessels and aircrafts,
undermining Philippine sovereignty and
national security, contravening the countrys
nuclear-free policy, and damaging marine
resources, in violation of relevant
constitutional provisions.13
In addition, petitioners contend that RA
9522s treatment of the KIG as regime of
islands not only results in the loss of a large
maritime area but also prejudices the
livelihood of subsistence fishermen.14 To
buttress their argument of territorial
diminution, petitioners facially attack RA
9522 for what it excluded and included its
failure to reference either the Treaty of Paris
or Sabah and its use of UNCLOS IIIs
framework of regime of islands to determine
the maritime zones of the KIG and the
Scarborough Shoal.

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and classified adjacent territories, namely,


the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands
whose islands generate their own applicable
maritime zones.

environment and economic interests or


relinquish the Philippines claim over Sabah.
Respondents also question the normative
force, under international law, of petitioners
assertion that what Spain ceded to the
United States under the Treaty of Paris were
the islands and all the waters found within
the boundaries of the rectangular area drawn
under the Treaty of Paris.
We left unacted petitioners prayer for an
injunctive writ.
The Issues
The petition raises the following issues:
1.

Preliminarily

1. Whether petitioners possess locus


standi to bring this suit; and
2. Whether the writs of certiorari and
prohibition are the proper remedies to assail
the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is
unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1)
petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari
and prohibition are proper remedies to test
the constitutionality of RA 9522. On the
merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues

Commenting on the petition, respondent


officials raised threshold issues questioning
(1) the petitions compliance with the case or
controversy requirement for judicial review
grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of
certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the
countrys compliance with the terms of
UNCLOS III, preserving Philippine territory
over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not
undermine the countrys security,

Petitioners Possess Locus Standi as


Citizens
Petitioners themselves undermine their
assertion of locus standi as legislators and
taxpayers because the petition alleges
neither infringement of legislative
prerogative15 nor misuse of public
funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we
recognize petitioners locus standi as citizens
with constitutionally sufficient interest in the
resolution of the merits of the case which
undoubtedly raises issues of national

The Writs of Certiorari and Prohibition


Are Proper Remedies to Test the
Constitutionality of Statutes
In praying for the dismissal of the petition on
preliminary grounds, respondents seek a
strict observance of the offices of the writs of
certiorari and prohibition, noting that the
writs cannot issue absent any showing of
grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers
on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in
ordinary civil proceedings. When this Court
exercises its constitutional power of judicial
review, however, we have, by tradition,
viewed the writs of certiorari and prohibition
as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of
acts of other branches of
government.20 Issues of constitutional import
are sometimes crafted out of statutes which,
while having no bearing on the personal
interests of the petitioners, carry such
relevance in the life of this nation that the
Court inevitably finds itself constrained to
take cognizance of the case and pass upon
the issues raised, non-compliance with the
letter of procedural rules notwithstanding.
The statute sought to be reviewed here is
one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to
Demarcate the Countrys Maritime
Zones and Continental Shelf Under
UNCLOS III, not to Delineate Philippine
Territory
Petitioners submit that RA 9522 dismembers
a large portion of the national
territory21 because it discards the preUNCLOS III demarcation of Philippine territory

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significance necessitating urgent resolution.


Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find
other litigants possessing a more direct and
specific interest to bring the suit, thus
satisfying one of the requirements for
granting citizenship standing.17

under the Treaty of Paris and related treaties,


successively encoded in the definition of
national territory under the 1935, 1973 and
1987 Constitutions. Petitioners theorize that
this constitutional definition trumps any
treaty or statutory provision denying the
Philippines sovereign control over waters,
beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain
supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris
technical description, Philippine sovereignty
over territorial waters extends hundreds of
nautical miles around the Philippine
archipelago, embracing the rectangular area
delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical
miles from the baselines], exclusive
economic zone [200 nautical miles from the
baselines]), and continental shelves that
UNCLOS III delimits.23UNCLOS III was the
culmination of decades-long negotiations
among United Nations members to codify
norms regulating the conduct of States in the
worlds oceans and submarine areas,
recognizing coastal and archipelagic States
graduated authority over a limited span of
waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA
9522 are enacted by UNCLOS III States
parties to mark-out specific basepoints along
their coasts from which baselines are drawn,
either straight or contoured, to serve as
geographic starting points to measure the
breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any
clearer:
Article 48. Measurement of the breadth of
the territorial sea, the contiguous zone, the
exclusive economic zone and the continental
shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic
zone and the continental shelf shall be

Even under petitioners theory that the


Philippine territory embraces the islands
and all the waters within the rectangular
area delimited in the Treaty of Paris, the
baselines of the Philippines would still have
to be drawn in accordance with RA 9522
because this is the only way to draw the
baselines in conformity with UNCLOS III. The
baselines cannot be drawn from the
boundaries or other portions of the
rectangular area delineated in the Treaty of
Paris, but from the outermost islands and
drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws
play no role in the acquisition, enlargement
or, as petitioners claim, diminution of
territory. Under traditional international law
typology, States acquire (or conversely, lose)
territory through occupation, accretion,
cession and prescription,25 not by executing
multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply
with the treatys terms to delimit maritime
zones and continental shelves. Territorial
claims to land features are outside UNCLOS
III, and are instead governed by the rules on
general international law.26
RA 9522s Use of the Framework of
Regime of Islands to Determine the
Maritime Zones of the KIG and the

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measured from archipelagic


baselines drawn in accordance with article
47. (Emphasis supplied)
Thus, baselines laws are nothing but
statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of
their maritime zones and continental
shelves. In turn, this gives notice to the rest
of the international community of the scope
of the maritime space and submarine areas
within which States parties exercise treatybased rights, namely, the exercise of
sovereignty over territorial waters (Article 2),
the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to
exploit the living and non-living resources in
the exclusive economic zone (Article 56) and
continental shelf (Article 77).

Scarborough Shoal, not Inconsistent


with the Philippines Claim of
Sovereignty Over these Areas
Petitioners next submit that RA 9522s use of
UNCLOS IIIs regime of islands framework to
draw the baselines, and to measure the
breadth of the applicable maritime zones of
the KIG, weakens our territorial claim over
that area.27 Petitioners add that the KIGs
(and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in
the loss of about 15,000 square nautical
miles of territorial waters, prejudicing the
livelihood of subsistence fishermen.28 A
comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522
and the extent of maritime space
encompassed by each law, coupled with a
reading of the text of RA 9522 and its
congressional deliberations, vis--vis the
Philippines obligations under UNCLOS III,
belie this view.
The configuration of the baselines drawn
under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints
mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize
the location of basepoints and adjust the
length of one baseline (and thus comply with
UNCLOS IIIs limitation on the maximum
length of baselines). Under RA 3046, as
under RA 9522, the KIG and the Scarborough
Shoal lie outside of the baselines drawn
around the Philippine archipelago. This
undeniable cartographic fact takes the wind
out of petitioners argument branding RA
9522 as a statutory renunciation of the
Philippines claim over the KIG, assuming that
baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000
square nautical miles of territorial waters
under RA 9522 is similarly unfounded both in
fact and law. On the contrary, RA 9522, by
optimizing the location of
basepoints, increased the Philippines total
maritime space (covering its internal waters,
territorial sea and exclusive economic zone)
by 145,216 square nautical miles, as shown
in the table below:29

Internal or
archipelagi 166,858
c waters
Territorial
Sea

274,136

Exclusive
Economic
Zone
TOTAL

Extent of maritime
area using RA
9522, taking into
account UNCLOS
III (in square
nautical miles)
P

Extent of maritime area


using RA 3046, as
amended, taking into
account the Treaty of
Paris delimitation (in
square nautical miles)

171,435

32,106

382,669
440,994

Thus, as the map below shows, the reach of


the exclusive economic zone drawn under RA
9522 even extends way beyond the waters
covered by the rectangular demarcation
under the Treaty of Paris. Of course, where
there are overlapping exclusive economic
zones of opposite or adjacent States, there
will have to be a delineation of maritime
boundaries in accordance with UNCLOS III. 30
Further, petitioners argument that the KIG
now lies outside Philippine territory because
the baselines that RA 9522 draws do not
enclose the KIG is negated by RA 9522 itself.
Section 2 of the law commits to text the
Philippines continued claim of sovereignty
and jurisdiction over the KIG and the
Scarborough Shoal:
SEC. 2. The baselines in the following
areas over which the Philippines likewise
exercises sovereignty and
jurisdiction shall be determined as Regime
of Islands under the Republic of the
Philippines consistent with Article 121 of the
United Nations Convention on the Law of the
Sea (UNCLOS):
a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as
Scarborough Shoal. (Emphasis supplied)

586,210

Had Congress in RA 9522 enclosed the KIG


and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects
would have ensued. The Philippines would
have committed a breach of two provisions
of UNCLOS III. First, Article 47 (3) of UNCLOS
III requires that [t]he drawing of such
baselines shall not depart to any appreciable
extent from the general configuration of the
archipelago. Second, Article 47 (2) of
UNCLOS III requires that the length of the
baselines shall not exceed 100 nautical
miles, save for three per cent (3%) of the
total number of baselines which can reach up
to 125 nautical miles.31
Although the Philippines has consistently
claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades,
these outlying areas are located at an
appreciable distance from the nearest
shoreline of the Philippine archipelago, 33 such
that any straight baseline loped around them
from the nearest basepoint will inevitably
depart to an appreciable extent from the
general configuration of the archipelago.
The principal sponsor of RA 9522 in the
Senate, Senator Miriam Defensor-Santiago,

What we call the Kalayaan Island Group or


what the rest of the world call[] the Spratlys
and the Scarborough Shoal are outside our
archipelagic baseline because if we put them
inside our baselines we might be accused of
violating the provision of international law
which states: The drawing of such baseline
shall not depart to any appreciable extent
from the general configuration of the
archipelago. So sa loob ng ating baseline,
dapat magkalapit ang mga islands. Dahil
malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we
are still allowed by international law to claim
them as our own.
This is called contested islands outside our
configuration. We see that our archipelago is
defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the
Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating
archipelagic baselines para lamang masama
itong dalawang circles, hindi na sila
magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it
should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA
3046 drew exceeded UNCLOS IIIs limits. The
need to shorten this baseline, and in
addition, to optimize the location of
basepoints using current maps, became
imperative as discussed by respondents:
[T]he amendment of the baselines law was
necessary to enable the Philippines to draw
the outer limits of its maritime zones
including the extended continental shelf in
the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as
amended by R.A. 5446, the baselines suffer
from some technical deficiencies, to wit:
1. The length of the baseline across Moro
Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x.

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took pains to emphasize the foregoing during


the Senate deliberations:

This exceeds the maximum length allowed


under Article 47(2) of the [UNCLOS III], which
states that The length of such baselines shall
not exceed 100 nautical miles, except that
up to 3 per cent of the total number of
baselines enclosing any archipelago may
exceed that length, up to a maximum length
of 125 nautical miles.
2. The selection of basepoints is not
optimal. At least 9 basepoints can be skipped
or deleted from the baselines system. This
will enclose an additional 2,195 nautical
miles of water.
3. Finally, the basepoints were drawn from
maps existing in 1968, and not established
by geodetic survey methods. Accordingly,
some of the points, particularly along the
west coasts of Luzon down to Palawan were
later found to be located either inland or on
water, not on low-water line and drying reefs
as prescribed by Article 47.35
Hence, far from surrendering the Philippines
claim over the KIG and the Scarborough
Shoal, Congress decision to classify the KIG
and the Scarborough Shoal as Regime[s] of
Islands under the Republic of the Philippines
consistent with Article 12136 of UNCLOS III
manifests the Philippine States responsible
observance of its pacta sunt
servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any naturally
formed area of land, surrounded by water,
which is above water at high tide, such as
portions of the KIG, qualifies under the
category of regime of islands, whose islands
generate their own applicable maritime
zones.37
Statutory Claim Over Sabah under RA
5446 Retained
Petitioners argument for the invalidity of RA
9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo
is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open
the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of
the territorial sea of the Philippine
Archipelago as provided in this Act is
without prejudice to the delineation of
the baselines of the territorial sea

UNCLOS III and RA 9522 not


Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of
RA 9522, petitioners contend that the law
unconstitutionally converts internal waters
into archipelagic waters, hence subjecting
these waters to the right of innocent and sea
lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these
passage rights indubitably expose Philippine
internal waters to nuclear and maritime
pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal
waters under Article I of the Constitution39 or
as archipelagic waters under UNCLOS III
(Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying
landward of the baselines, including the air
space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic
waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an archipelagic
State extends to the waters enclosed by
the archipelagic baselines drawn in
accordance with article 47, described as
archipelagic waters, regardless of their depth
or distance from the coast.
2. This sovereignty extends to the air
space over the archipelagic waters, as
well as to their bed and subsoil, and the
resources contained therein.
xxxx
4. The regime of archipelagic sea lanes
passage established in this Part shall not in
other respects affect the status of the
archipelagic waters, including the sea
lanes, or the exercise by the
archipelagic State of its sovereignty
over such waters and their air space,

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around the territory of Sabah, situated


in North Borneo, over which the
Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis
supplied)

bed and subsoil, and the resources


contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not
preclude the operation of municipal and
international law norms subjecting the
territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the
interest of maintaining unimpeded,
expeditious international navigation,
consistent with the international law principle
of freedom of navigation. Thus, domestically,
the political branches of the Philippine
government, in the competent discharge of
their constitutional powers, may pass
legislation designating routes within the
archipelagic waters to regulate innocent and
sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are
now pending in Congress. 41
In the absence of municipal legislation,
international law norms, now codified in
UNCLOS III, operate to grant innocent
passage rights over the territorial sea or
archipelagic waters, subject to the treatys
limitations and conditions for their
exercise.42 Significantly, the right of innocent
passage is a customary international
law,43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State
can validly invoke its sovereignty to
absolutely forbid innocent passage that is
exercised in accordance with customary
international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their
archipelagic waters are subject to both the
right of innocent passage and sea lanes
passage45 does not place them in lesser
footing vis--vis continental coastal States
which are subject, in their territorial sea, to
the right of innocent passage and the right of
transit passage through international straits.
The imposition of these passage rights
through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in
exchange for their right to claim all the
waters landward of their
baselines, regardless of their depth or
distance from the coast, as archipelagic
waters subject to their territorial sovereignty.
More importantly, the recognition of
archipelagic States archipelago and the
waters enclosed by their baselines as one

Petitioners invocation of non-executory


constitutional provisions in Article II
(Declaration of Principles and State
Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in
Article II as mere legislative guides, which,
absent enabling legislation, do not embody
judicially enforceable constitutional rights x x
x.49 Article II provisions serve as guides in
formulating and interpreting implementing
legislation, as well as in interpreting
executory provisions of the Constitution.
Although Oposa v. Factoran50treated the right
to a healthful and balanced ecology under
Section 16 of Article II as an exception, the
present petition lacks factual basis to
substantiate the claimed constitutional
violation. The other provisions petitioners
cite, relating to the protection of marine
wealth (Article XII, Section 2, paragraph 251)
and subsistence fishermen (Article XIII,
Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines
enables the Philippines to delimit its
exclusive economic zone, reserving solely to
the Philippines the exploitation of all living
and non-living resources within such zone.
Such a maritime delineation binds the
international community since the
delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to
UNCLOS III, the international community will
of course reject it and will refuse to be bound
by it.
UNCLOS III favors States with a long coastline
like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive
economic zone in waters previously part of

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cohesive entity prevents the treatment of


their islands as separate islands under
UNCLOS III.46 Separate islands generate their
own maritime zones, placing the waters
between islands separated by more than 24
nautical miles beyond the States territorial
sovereignty, subjecting these waters to the
rights of other States under UNCLOS III. 47

the high seas. UNCLOS III grants new rights


to coastal States to exclusively exploit the
resources found within this zone up to 200
nautical miles.53 UNCLOS III, however,
preserves the traditional freedom of
navigation of other States that attached to
this zone beyond the territorial sea before
UNCLOS III.
RA 9522 and the Philippines Maritime
Zones
Petitioners hold the view that, based on the
permissive text of UNCLOS III, Congress was
not bound to pass RA 9522.54 We have looked
at the relevant provision of UNCLOS III 55 and
we find petitioners reading plausible.
Nevertheless, the prerogative of choosing
this option belongs to Congress, not to this
Court. Moreover, the luxury of choosing this
option comes at a very steep price. Absent
an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will
find itself devoid of internationally
acceptable baselines from where the breadth
of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to
the seafaring powers to freely enter and
exploit the resources in the waters and
submarine areas around our archipelago;
and second, it weakens the countrys case in
any international dispute over Philippine
maritime space. These are consequences
Congress wisely avoided.
The enactment of UNCLOS III compliant
baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522,
allows an internationally-recognized
delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA
9522 is therefore a most vital step on the
part of the Philippines in safeguarding its
maritime zones, consistent with the
Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.

MOST REV. PEDRO D. ARIGO, Vicar


Apostolic of Puerto Princesa D.D.; MOST
REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus of Caloocan, FRANCES
Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR.,
Bagong Alyansang Makabayan, HON.
NERI JAVIER COLMENARES, Bayan Muna
Partylist, ROLAND G. SIMBULAN, PH.D.,
Junk VF A Movement, TERESITA R.
PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER
SJ. GONZALES, Pamalakaya, GIOVANNI
A. TAPANG, PH. D., Agham, ELMER C.
LABOG, Kilusang Mayo Uno, JOAN MAY
E. SALVADOR, Gabriela, JOSE ENRIQUE
A. AFRICA, THERESA A. CONCEPCION,
MARY JOAN A. GUAN, NESTOR T.
BAGUINON, PH.D., A. EDSEL F.
TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as
Commander of the US. 7th Fleet, MARK
A. RICE in his capacity as Commanding
Officer of the USS Guardian, PRESIDENT
BENIGNO S. AQUINO III in his capacity
as Commander-in-Chief of the Armed
Forces of the Philippines, HON. ALBERT
F. DEL ROSARIO, Secretary, pepartment
of Foreign Affair.s, HON. PAQUITO
OCHOA, JR., Executiv~.:Secretary, Office
of the President, . HON. VOLTAIRE T.
GAZMIN, Secretary, Department of
National Defense, HON. RAMON JESUS P.
P AJE, Secretary, Department of
Environment and Natural Resoz!rces,
VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in
Command, Armed Forces of the
Philippines, ADMIRAL RODOLFO D. ISO
RENA, Commandant, Philippine Coast
Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard
Palawan, MAJOR GEN. VIRGILIO 0.

September 16,

G.R. No. 206510


2014

DOMINGO, Commandant of Armed


Forces of the Philippines Command and
LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces. Pacific and Balikatan 2013
Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a
Writ of Kalikasan with prayer for the issuance
of a Temporary Environmental Protection
Order (TEPO) under Rule 7 of A.M. No. 09-68-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules),
involving violations of environmental laws
and regulations in relation to the grounding
of the US military ship USS Guardian over the
Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal
(seafaring people of southern Philippines)
language which means "long reef exposed at
low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the
south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers
north of the atolls. The reefs of Tubbataha
and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of
Palawan.1
In 1988, Tubbataha was declared a National
Marine Park by virtue of Proclamation No.
306 issued by President Corazon C. Aquino
on August 11, 1988. Located in the middle of
Central Sulu Sea, 150 kilometers southeast
of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center
of marine biodiversity.
In 1993, Tubbataha was inscribed by the
United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World
Heritage Site. It was recognized as one of the

On April 6, 2010, Congress passed Republic


Act (R.A.) No. 10067,3 otherwise known as
the "Tubbataha Reefs Natural Park (TRNP) Act
of 2009" "to ensure the protection and
conservation of the globally significant
economic, biological, sociocultural,
educational and scientific values of the
Tubbataha Reefs into perpetuity for the
enjoyment of present and future
generations." Under the "no-take" policy,
entry into the waters of TRNP is strictly
regulated and many human activities are
prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing
the resources within the TRNP. The law
likewise created the Tubbataha Protected
Area Management Board (TPAMB) which shall
be the sole policy-making and permitgranting body of the TRNP.
The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In
December 2012, the US Embassy in the
Philippines requested diplomatic clearance
for the said vessel "to enter and exit the
territorial waters of the Philippines and to
arrive at the port of Subic Bay for the
purpose of routine ship replenishment,
maintenance, and crew liberty."4 On January
6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a
brief stop for fuel in Okinawa, Japan.1wphi1

10
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Philippines' oldest ecosystems, containing


excellent examples of pristine reefs and a
high diversity of marine life. The 97,030hectare protected marine park is also an
important habitat for internationally
threatened and endangered marine species.
UNESCO cited Tubbataha's outstanding
universal value as an important and
significant natural habitat for in situ
conservation of biological diversity; an
example representing significant on-going
ecological and biological processes; and an
area of exceptional natural beauty and
aesthetic importance.2

On January 15, 2013, the USS Guardian


departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at
2:20 a.m. while transiting the Sulu Sea, the
ship ran aground on the northwest side of
South Shoal of the Tubbataha Reefs, about
80 miles east-southeast of Palawan. No cine
was injured in the incident, and there have
been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet
Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press
statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting
at the Department of Foreign Affairs (DFA) on
February 4, "reiterated his regrets over the
grounding incident and assured Foreign
Affairs Secretazy Albert F. del Rosario that
the United States will provide appropriate
compensation for damage to the reef caused
by the ship."6 By March 30, 2013, the US
Navy-led salvage team had finished
removing the last piece of the grounded ship
from the coral reef.
On April 1 7, 2013, the above-named
petitioners on their behalf and in
representation of their respective
sector/organization and others, including
minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his
capacity as Commander of the US 7th Fleet,
Mark A. Rice in his capacity as Commanding
Officer of the USS Guardian and Lt. Gen.
Terry G. Robling, US Marine Corps Forces,
Pacific and Balikatan 2013 Exercises CoDirector ("US respondents"); President
Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of
the Philippines (AFP), DF A Secretary Albert F.
Del Rosario, Executive Secretary Paquito
Ochoa, Jr., Secretary Voltaire T. Gazmin
(Department of National Defense), Secretary
Jesus P. Paje (Department of Environment
and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in
Command, AFP), Admiral Rodolfo D. Isorena

The Petition

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(Philippine Coast Guard Commandant),


Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP
Commandant), collectively the "Philippine
respondents."

a. Order Respondents and any person acting


on their behalf, to cease and desist all
operations over the Guardian grounding
incident;
b. Initially demarcating the metes and
bounds of the damaged area as well as an
additional buffer zone;

Petitioners claim that the grounding,


salvaging and post-salvaging operations of
the USS Guardian cause and continue to
cause environmental damage of such
magnitude as to affect the provinces of
Palawan, Antique, Aklan, Guimaras, Iloilo,
Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and
Tawi-Tawi, which events violate their
constitutional rights to a balanced and
healthful ecology. They also seek a directive
from this Court for the institution of civil,
administrative and criminal suits for acts
committed in violation of environmental laws
and regulations in connection with the
grounding incident.

c. Order Respondents to stop all port calls


and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and
liability schemes for breaches of those
duties, and require Respondents to assume
responsibility for prior and future
environmental damage in general, and
environmental damage under the Visiting
Forces Agreement in particular.

Specifically, petitioners cite the following


violations committed by US respondents
under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation
fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to
the reef (Section 20); and destroying and
disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement
(VFA) which they want this Court to nullify for
being unconstitutional.

2. After summary hearing, issue a Resolution


extending the TEPO until further orders of
the Court;

The numerous reliefs sought in this case are


set forth in the final prayer of the petition, to
wit: WHEREFORE, in view of the foregoing,
Petitioners respectfully pray that the
Honorable Court: 1. Immediately issue upon
the filing of this petition a Temporary
Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in
particular,

d. Temporarily define and describe allowable


activities of ecotourism, diving, recreation,
and limited commercial activities by
fisherfolk and indigenous communities near
or around the TRNP but away from the
damaged site and an additional buffer zone;

3. After due proceedings, render a Decision


which shall include, without limitation:
a. Order Respondents Secretary of Foreign
Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate
with the United States representatives for
the appropriate agreement on
[environmental guidelines and environmental
accountability] under Philippine authorities
as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate
agencies to commence administrative, civil,
and criminal proceedings against erring
officers and individuals to the full extent of
the law, and to make such proceedings
public;

d. Require Respondents to pay just and


reasonable compensation in the settlement
of all meritorious claims for damages caused
to the Tubbataha Reef on terms and
conditions no less severe than those
applicable to other States, and damages for
personal injury or death, if such had been
the case;
e. Direct Respondents to cooperate in
providing for the attendance of witnesses
and in the collection and production of
evidence, including seizure and delivery of
objects connected with the offenses related
to the grounding of the Guardian;
f. Require the authorities of the Philippines
and the United States to notify each other of
the disposition of all cases, wherever heard,
related to the grounding of the Guardian;
g. Restrain Respondents from proceeding
with any purported restoration, repair,
salvage or post salvage plan or plans,
including cleanup plans covering the
damaged area of the Tubbataha Reef absent
a just settlement approved by the Honorable
Court;
h. Require Respondents to engage in
stakeholder and LOU consultations in
accordance with the Local Government Code
and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the
TRNP Trust Fund defined under Section 17 of
RA 10067 as a bona .fide gesture towards full
reparations;
j. Direct Respondents to undertake measures
to rehabilitate the areas affected by the
grounding of the Guardian in light of

12
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c. Declare that Philippine authorities may


exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under
the circumstances of this case;

Respondents' experience in the Port Royale


grounding in 2009, among other similar
grounding incidents;
k. Require Respondents to regularly publish
on a quarterly basis and in the name of
transparency and accountability such
environmental damage assessment,
valuation, and valuation methods, in all
stages of negotiation;
l. Convene a multisectoral technical working
group to provide scientific and technical
support to the TPAMB;
m. Order the Department of Foreign Affairs,
Department of National Defense, and the
Department of Environment and Natural
Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for
the exercise of erga omnes rights to a
balanced and healthful ecology and for
damages which follow from any violation of
those rights;
n. Narrowly tailor the provisions of the
Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in
Article V ("Criminal Jurisdiction") and Article
VI of the Visiting Forces Agreement
unconstitutional for violating equal
protection and/or for violating the
preemptory norm of nondiscrimination
incorporated as part of the law of the land
under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in
the Tubbataha Reefs in all other respects;
and
4. Provide just and equitable environmental
rehabilitation measures and such other

13

importance, of overreaching significance to


society, or of paramount public interest. 12

reliefs as are just and equitable under the


premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed
their comment8 to the petition, petitioners
also filed a motion for early resolution and
motion to proceed ex parte against the US
respondents.9
Respondents' Consolidated Comment
In their consolidated comment with
opposition to the application for a TEPO and
ocular inspection and production orders,
respondents assert that: ( 1) the grounds
relied upon for the issuance of a TEPO or writ
of Kalikasan have become fait accompli as
the salvage operations on the USS Guardian
were already completed; (2) the petition is
defective in form and substance; (3) the
petition improperly raises issues involving
the VFA between the Republic of the
Philippines and the United States of America;
and ( 4) the determination of the extent of
responsibility of the US Government as
regards the damage to the Tubbataha Reefs
rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute
on the legal standing of petitioners to file the
present petition.
Locus standi is "a right of appearance in a
court of justice on a given
question."10 Specifically, it is "a party's
personal and substantial interest in a case
where he has sustained or will sustain direct
injury as a result" of the act being
challenged, and "calls for more than just a
generalized grievance."11 However, the rule
on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs
like ordinary citizens, taxpayers and
legislators when the public interest so
requires, such as when the subject matter of
the controversy is of transcendental

In the landmark case of Oposa v. Factoran,


Jr.,13 we recognized the "public right" of
citizens to "a balanced and healthful ecology
which, for the first time in our constitutional
history, is solemnly incorporated in the
fundamental law." We declared that the right
to a balanced and healthful ecology need not
be written in the Constitution for it is
assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from
the inception of mankind and it is an issue of
transcendental importance with
intergenerational implications.1wphi1 Such
right carries with it the correlative duty to
refrain from impairing the environment.14
On the novel element in the class suit filed
by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have
legal standing to sue for the enforcement of
environmental rights, they can do so in
representation of their own and future
generations. Thus:
Petitioners minors assert that they represent
their generation as well as generations yet
unborn. We find no difficulty in ruling that
they can, for themselves, for others of their
generation and for the succeeding
generations, file a class suit. Their
personality to sue in behalf of the succeeding
generations can only be based on the
concept of intergenerational responsibility
insofar as the right to a balanced and
healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the
"rhythm and harmony of nature." Nature
means the created world in its entirety. Such
rhythm and harmony indispensably include,
inter alia, the judicious disposition,
utilization, management, renewal and
conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end
that their exploration, development and

The liberalization of standing first enunciated


in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in
the Rules which allows the filing of a citizen
suit in environmental cases. The provision on
citizen suits in the Rules "collapses the
traditional rule on personal and direct
interest, on the principle that humans are
stewards of nature."16
Having settled the issue of locus standi, we
shall address the more fundamental question
of whether this Court has jurisdiction over
the US respondents who did not submit any
pleading or manifestation in this case.
The immunity of the State from suit, known
also as the doctrine of sovereign immunity or
non-suability of the State,17 is expressly
provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued
without its consent.
In United States of America v. Judge
Guinto,18 we discussed the principle of state
immunity from suit, as follows:

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utilization be equitably accessible to the


present a:: well as future generations.
Needless to say, every generation has a
responsibility to the next to preserve that
rhythm and harmony for the full 1:njoyment
of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their
right to a sound environment constitutes, at
the same time, the performance of their
obligation to ensure the protection of that
right for the generations to
come.15 (Emphasis supplied.)

The rule that a state may not be sued


without its consent, now expressed in
Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted
principles of international law that we have
adopted as part of the law of our land under
Article II, Section 2. x x x.
Even without such affirmation, we would still
be bound by the generally accepted
principles of international law under the
doctrine of incorporation. Under this
doctrine, as accepted by the majority of
states, such principles are deemed
incorporated in the law of every civilized
state as a condition and consequence of its
membership in the society of nations. Upon
its admission to such society, the state is
automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of
state immunity is based on the justification
given by Justice Holmes that ''there can be
no legal right against the authority which
makes the law on which the right depends."
[Kawanakoa v. Polybank, 205 U.S. 349] There
are other practical reasons for the
enforcement of the doctrine. In the case of
the foreign state sought to be impleaded in
the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non
habet imperium. All states are sovereign
equals and cannot assert jurisdiction over
one another. A contrary disposition would, in
the language of a celebrated case, "unduly
vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only
suits against the state without its consent, it
is also applicable to complaints filed against
officials of the state for acts allegedly
performed by them in the discharge of their
duties. The rule is that if the judgment
against such officials will require the state
itself to perform an affirmative act to satisfy
the same,. such as the appropriation of the

Under the American Constitution, the


doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall
not be construed to extend to any suit in law
or equity, commenced or prosecuted against
one of the United States by Citizens of
another State, or by Citizens or Subjects of
any Foreign State.
In the case of Minucher v. Court of
Appeals,20 we further expounded on the
immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in
the courts of a foreign state is a longstanding rule of customary international law
then closely identified with the personal
immunity of a foreign sovereign from suit
and, with the emergence of democratic
states, made to attach not just to the person
of the head of state, or his representative,
but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a
suit arc those of a foreign government done
by its foreign agent, although not necessarily
a diplomatic personage, but acting in his
official capacity, the complaint could be
barred by the immunity of the foreign
sovereign from suit without its consent.
Suing a representative of a state is believed
to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of
an individual but for the State, in whose
service he is, under the maxim -par in
parem, non habet imperium -that all states

15
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amount needed to pay the damages


awarded against them, the suit must be
regarded as against the state itself although
it has not been formally impleaded. [Garcia
v. Chief of Staff, 16 SCRA 120] In such a
situation, the state may move to dismiss the
comp.taint on the ground that it has been
filed without its consent.19 (Emphasis
supplied.)

are soverr~ign equals and cannot assert


jurisdiction over one another. The
implication, in broad terms, is that if the
judgment against an official would rec 1uire
the state itself to perform an affirmative act
to satisfy the award, such as the
appropriation of the amount needed to pay
the damages decreed against him, the suit
must be regarded as being against the state
itself, although it has not been formally
impleaded.21(Emphasis supplied.)
In the same case we also mentioned that in
the case of diplomatic immunity, the
privilege is not an immunity from the
observance of the law of the territorial
sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of
territorial jurisdiction.22
In United States of America v. Judge
Guinto,23 one of the consolidated cases
therein involved a Filipino employed at Clark
Air Base who was arrested following a buybust operation conducted by two officers of
the US Air Force, and was eventually
dismissed from his employment when he was
charged in court for violation of R.A. No.
6425. In a complaint for damages filed by
the said employee against the military
officers, the latter moved to dismiss the case
on the ground that the suit was against the
US Government which had not given its
consent. The RTC denied the motion but on a
petition for certiorari and prohibition filed
before this Court, we reversed the RTC and
dismissed the complaint. We held that
petitioners US military officers were acting in
the exercise of their official functions when
they conducted the buy-bust operation
against the complainant and thereafter
testified against him at his trial. It follows
that for discharging their duties as agents of
the United States, they cannot be directly
impleaded for acts imputable to their
principal, which has not given its consent to
be sued.

In Shauf v. Court of Appeals, 25 we discussed


the limitations of the State immunity
principle, thus:

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This traditional rule of State immunity which


exempts a State from being sued in the
courts of another State without the former's
consent or waiver has evolved into a
restrictive doctrine which distinguishes
sovereign and governmental acts (Jure
imperil") from private, commercial and
proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State
immunity extends only to acts Jure imperii.
The restrictive application of State immunity
is proper only when the proceedings arise
out of commercial transactions of the foreign
sovereign, its commercial activities or
economic affairs.24

It is a different matter where the public


official is made to account in his capacity as
such for acts contrary to law and injurious to
the rights of plaintiff. As was clearly set forth
by JustiGe Zaldivar in Director of the Bureau
of Telecommunications, et al. vs. Aligaen,
etc., et al. : "Inasmuch as the State
authorizes only legal acts by its officers,
unauthorized acts of government officials or
officers are not acts of the State, and an
action against the officials or officers by one
whose rights have been invaded or violated
by such acts, for the protection of his rights,
is not a suit against the State within the rule
of immunity of the State from suit. In the
same tenor, it has been said that an action
at law or suit in equity against a State officer
or the director of a State department on the
ground that, while claiming to act for the
State, he violates or invades the personal
and property rights of the plaintiff, under an
unconstitutional act or under an assumption
of authority which he does not have, is not a
suit against the State within the
constitutional provision that the State may
not be sued without its consent." The
rationale for this ruling is that the doctrine of
state immunity cannot be used as an
instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the
matter. They state that the doctrine of
immunity from suit will not apply and may
not be invoked where the public official is
being sued in his private and personal
capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of
the government is removed the moment
they are sued in their individual capacity.
This situation usually arises where the public
official acts without authority or in excess of
the powers vested in him. It is a well-settled
principle of law that a public official may be
liable in his personal private capacity for
whatever damage he may have caused by
his act done with malice and in bad faith, or

During the deliberations, Senior Associate


Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when
its warship entered a restricted area in
violation of R.A. No. 10067 and caused
damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the
United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign
immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail
to comply with the rules and regulations of
the coastal State regarding passage through
the latter's internal waters and the territorial
sea.
According to Justice Carpio, although the US
to date has not ratified the UNCLOS, as a
matter of long-standing policy the US
considers itself bound by customary
international rules on the "traditional uses of
the oceans" as codified in UNCLOS, as can be
gleaned from previous declarations by
former Presidents Reagan and Clinton, and
the US judiciary in the case of United States
v. Royal Caribbean Cruise Lines, Ltd.27

17
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beyond the scope of his authority or


jurisdiction.26 (Emphasis supplied.) In this
case, the US respondents were sued in their
official capacity as commanding officers of
the US Navy who had control and supervision
over the USS Guardian and its crew. The
alleged act or omission resulting in the
unfortunate grounding of the USS Guardian
on the TRNP was committed while they we:re
performing official military duties.
Considering that the satisfaction of a
judgment against said officials will require
remedial actions and appropriation of funds
by the US government, the suit is deemed to
be one against the US itself. The principle of
State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling.

The international law of the sea is generally


defined as "a body of treaty rules arid
customary norms governing the uses of the
sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime
regimes. It is a branch of public international
law, regulating the relations of states with
respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was
opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by
the Philippines in 1984 but came into force
on November 16, 1994 upon the submission
of the 60th ratification.
The UNCLOS is a product of international
negotiation that seeks to balance State
sovereignty (mare clausum) and the principle
of freedom of the high seas (mare
liberum).29 The freedom to use the world's
marine waters is one of the oldest customary
principles of international law. 30 The UNCLOS
gives to the coastal State sovereign rights in
varying degrees over the different zones of
the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4)
exclusive economic zone, and 5) the high
seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending
on where the vessel is located.31
Insofar as the internal waters and territorial
sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and
other rules of international law. Such
sovereignty extends to the air space over the
territorial sea as well as to its bed and
subsoil.32
In the case of warships,33 as pointed out by
Justice Carpio, they continue to enjoy
sovereign immunity subject to the following
exceptions:
Article 30
Non-compliance by warships with the laws
and regulations of the coastal State

Article 31
Responsibility of the flag State for damage
caused by a warship
or other government ship operated for noncommercial purposes
The flag State shall bear international
responsibility for any loss or damage to the
coastal State resulting from the noncompliance by a warship or other
government ship operated for noncommercial purposes with the laws and
regulations of the coastal State concerning
passage through the territorial sea or with
the provisions of this Convention or other
rules of international law.
Article 32
Immunities of warships and other
government ships operated for noncommercial purposes
With such exceptions as are contained in
subsection A and in articles 30 and 31,
nothing in this Convention affects the
immunities of warships and other
government ships operated for noncommercial purposes. (Emphasis supplied.) A
foreign warship's unauthorized entry into our
internal waters with resulting damage to
marine resources is one situation in which
the above provisions may apply. But what if
the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of
nation states are now members of UNCLOS,
but despite this the US, the world's leading
maritime power, has not ratified it.

18
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If any warship does not comply with the laws


and regulations of the coastal State
concerning passage through the territorial
sea and disregards any request for
compliance therewith which is made to it,
the coastal State may require it to leave the
territorial sea immediately.

While the Reagan administration was


instrumental in UNCLOS' negotiation and
drafting, the U.S. delegation ultimately voted
against and refrained from signing it due to
concerns over deep seabed mining
technology transfer provisions contained in
Part XI. In a remarkable, multilateral effort to
induce U.S. membership, the bulk of UNCLOS
member states cooperated over the
succeeding decade to revise the
objection.able provisions. The revisions
satisfied the Clinton administration, which
signed the revised Part XI implementing
agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and
the Part XI implementing agreement to the
Senate requesting its advice and consent.
Despite consistent support from President
Clinton, each of his successors, and an
ideologically diverse array of stakeholders,
the Senate has since withheld the consent
required for the President to internationally
bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign
Relations Committee (SFRC) during the 108th
and 110th Congresses, its progress continues
to be hamstrung by significant pockets of
political ambivalence over U.S. participation
in international institutions. Most recently,
111 th Congress SFRC Chairman Senator
John Kerry included "voting out" UNCLOS for
full Senate consideration among his highest
priorities. This did not occur, and no Senate
action has been taken on UNCLOS by the
112th Congress.34
Justice Carpio invited our attention to the
policy statement given by President Reagan
on March 10, 1983 that the US will
"recognize the rights of the other , states in
the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights
and freedom of the United States and others
under international law are recognized by
such coastal states", and President Clinton's
reiteration of the US policy "to act in a
manner consistent with its [UNCLOS]

As to the non-ratification by the US, Justice


Carpio emphasizes that "the US' refusal to
join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep
seabed mining (Part XI) which considers the
oceans and deep seabed commonly owned
by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of
customary international rules on navigation."
It may be mentioned that even the US Navy
Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as
shown by the following statement posted on
its official website:
The Convention is in the national interest of
the United States because it establishes
stable maritime zones, including a maximum
outer limit for territorial seas; codifies
innocent passage, transit passage, and
archipelagic sea lanes passage rights; works
against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own
maritime zones; and reaffirms sovereign
immunity of warships, auxiliaries anJ
government aircraft.
xxxx
Economically, accession to the Convention
would support our national interests by
enhancing the ability of the US to assert its
sovereign rights over the resources of one of
the largest continental shelves in the world.
Further, it is the Law of the Sea Convention

19
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provisions relating to traditional uses of the


oceans and to encourage other countries to
do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if
under its policy, the US 'recognize[s] the
rights of the other states in the waters off
their coasts,"' Justice Carpio postulates that
"there is more reason to expect it to
recognize the rights of other states in their
internal waters, such as the Sulu Sea in this
case."

that first established the concept of a


maritime Exclusive Economic Zone out to
200 nautical miles, and recognized the rights
of coastal states to conserve and manage
the natural resources in this Zone.35
We fully concur with Justice Carpio's view
that non-membership in the UNCLOS does
not mean that the US will disregard the
rights of the Philippines as a Coastal State
over its internal waters and territorial sea.
We thus expect the US to bear "international
responsibility" under Art. 31 in connection
with the USS Guardian grounding which
adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our longtime ally and trading partner, which has
been actively supporting the country's efforts
to preserve our vital marine resources, would
shirk from its obligation to compensate the
damage caused by its warship while
transiting our internal waters. Much less can
we comprehend a Government exercising
leadership in international affairs, unwilling
to comply with the UNCLOS directive for all
nations to cooperate in the global task to
protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and,
as appropriate, on a regional basis, directly
or through competent international
organizations, in formulating and elaborating
international rules, standards and
recommended practices and procedures
consistent with this Convention, for the
protection and preservation of the marine
environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions
to the present controversy is beyond dispute.
Although the said treaty upholds the
immunity of warships from the jurisdiction of
Coastal States while navigating the.latter's

Petitioners argue that there is a waiver of


immunity from suit found in the VFA.
Likewise, they invoke federal statutes in the
US under which agencies of the US have
statutorily waived their immunity to any
action. Even under the common law tort
claims, petitioners asseverate that the US
respondents are liable for negligence,
trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the
treatment of United States troops and
personnel visiting the Philippines to promote
"common security interests" between the US
and the Philippines in the region. It provides
for the guidelines to govern such visits of
military personnel, and further defines the
rights of the United States and the Philippine
government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment,
materials and supplies.36 The invocation of
US federal tort laws and even common law is
thus improper considering that it is the VF A
which governs disputes involving US military
ships and crew navigating Philippine waters
in pursuance of the objectives of the
agreement.

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territorial sea, the flag States shall be


required to leave the territorial '::;ea
immediately if they flout the laws and
regulations of the Coastal State, and they will
be liable for damages caused by their
warships or any other government vessel
operated for non-commercial purposes under
Article 31.

As it is, the waiver of State immunity under


the VF A pertains only to criminal jurisdiction
and not to special civil actions such as the
present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a
criminal case against a person charged with
a violation of an environmental law is to be
filed separately:
SEC. 17. Institution of separate actions.-The
filing of a petition for the issuance of the writ
of kalikasan shall not preclude the filing of
separate civil, criminal or administrative
actions.
In any case, it is our considered view that a
ruling on the application or non-application
of criminal jurisdiction provisions of the VF A
to US personnel who may be found
responsible for the grounding of the USS
Guardian, would be premature and beyond
the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of
State immunity is indeed absolute. In the
same vein, we cannot grant damages which
have resulted from the violation of
environmental laws. The Rules allows the
recovery of damages, including the collection
of administrative fines under R.A. No. 10067,
in a separate civil suit or that deemed
instituted with the criminal action charging
the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs
which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days
from the time the petition is submitted for
decision, the court shall render judgment
granting or denying the privilege of the writ
of kalikasan.
The reliefs that may be granted under the
writ are the following:

(b) Directing the respondent public official,


govemment agency, private person or entity
to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official,
government agency, private person or entity
to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
(e) Such other reliefs which relate to the
right of the people to a balanced and
healthful ecology or to the protection,
preservation, rehabilitation or restoration of
the environment, except the award of
damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine
officials) in asserting that this petition has
become moot in the sense that the salvage
operation sought to be enjoined or restrained
had already been accomplished when
petitioners sought recourse from this Court.
But insofar as the directives to Philippine
respondents to protect and rehabilitate the
coral reef stn icture and marine habitat
adversely affected by the grounding incident
are concerned, petitioners are entitled to
these reliefs notwithstanding the completion
of the removal of the USS Guardian from the
coral reef. However, we are mindful of the
fact that the US and Philippine governments
both expressed readiness to negotiate and
discuss the matter of compensation for the
damage caused by the USS Guardian. The US
Embassy has also declared it is closely

21
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(a) Directing respondent to permanently


cease and desist from committing acts or
neglecting the performance of a duty in
violation of environmental laws resulting in
environmental destruction or damage;

coordinating with local scientists and experts


in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of
environmental cases is not proscribed by the
Rules. As can be gleaned from the following
provisions, mediation and settlement are
available for the consideration of the parties,
and which dispute resolution methods are
encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of
the pre-trial conference, the court shall
inquire from the parties if they have settled
the dispute; otherwise, the court shall
immediately refer the parties or their
counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for
purposes of mediation. If not available, the
court shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within a nonextendible period of thirty (30) days from
receipt of notice of referral to mediation.
The mediation report must be submitted
within ten (10) days from the expiration of
the 30-day period.
SEC. 4. Preliminary conference.-If mediation
fails, the court will schedule the continuance
of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to
the branch clerk of court for a preliminary
conference for the following purposes:
(a) To assist the parties in reaching a
settlement;
xxxx

The judge shall exert best efforts to persuade


the parties to arrive at a settlement of the
dispute. The judge may issue a consent
decree approving the agreement between
the parties in accordance with law, morals,
public order and public policy to protect the
right of the people to a balanced and
healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall
endeavor to make the parties to agree to
compromise or settle in accordance with law
at any stage of the proceedings before
rendition of judgment. (Underscoring
supplied.)
The Court takes judicial notice of a similar
incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground
about half a mile off the Honolulu Airport
Reef Runway and remained stuck for four
days. After spending $6.5 million restoring
the coral reef, the US government was
reported to have paid the State of Hawaii
$8.5 million in settlement over coral reef
damage caused by the grounding.38
To underscore that the US government is
prepared to pay appropriate compensation
for the damage caused by the USS Guardian
grounding, the US Embassy in the Philippines
has announced the formation of a US
interdisciplinary scientific team which will
"initiate discussions with the Government of
the Philippines to review coral reef
rehabilitation options in Tubbataha, based on
assessments by Philippine-based marine
scientists." The US team intends to "help
assess damage and remediation options, in
coordination with the Tubbataha
Management Office, appropriate Philippine

22
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SEC. 5. Pre-trial conference; consent decree.The judge shall put the parties and their
counsels under oath, and they shall remain
under oath in all pre-trial conferences.

government entities, non-governmental


organizations, and scientific experts from
Philippine universities."39
A rehabilitation or restoration program to be
implemented at the cost of the violator is
also a major relief that may be obtained
under a judgment rendered in a citizens' suit
under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If
warranted, the court may grant to the
plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of
the environment and the payment of
attorney's fees, costs of suit and other
litigation expenses. It may also require the
violator to submit a program of rehabilitation
or restoration of the environment, the costs
of which shall be borne by the violator, or to
contribute to a special trust fund for that
purpose subject to the control of the
court.1wphi1
In the light of the foregoing, the Court defers
to the Executive Branch on the matter of
compensation and rehabilitation measures
through diplomatic channels. Resolution of
these issues impinges on our relations with
another State in the context of common
security interests under the VFA. It is settled
that "[t]he conduct of the foreign relations of
our government is committed by the
Constitution to the executive and
legislative-"the political" --departments of
the government, and the propriety of what
may be done in the exercise of this political
power is not subject to judicial inquiry or
decision."40
On the other hand, we cannot grant the
additional reliefs prayed for in the petition to
order a review of the VFA and to nullify
certain immunity provisions thereof.

23
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As held in BAYAN (Bagong Alyansang


Makabayan) v. Exec. Sec. Zamora, 41 the VFA
was duly concurred in by the Philippine
Senate and has been recognized as a treaty
by the United States as attested and certified
by the duly authorized representative of the
United States government. The VF A being a
valid and binding agreement, the parties are
required as a matter of international law to
abide by its terms and provisions.42 The
present petition under the Rules is not the

proper remedy to assail the constitutionality


of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of
Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.

24

April 8, 2014

G.R. No. 204819

JAMES M. IMBONG and LOVELY-ANN C.


IMBONG, for themselves and in behalf of
their minor children, LUCIA CARLOS IMBONG
and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department
of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION
PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche,
Spouses Reynaldo S. Luistro & Rosie B .
Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C.
Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa
S. Bautista, Desiderio Racho & Traquilina
Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and
on behalf of their minor children, Therese
Antonette C. Tansingco, Lorenzo Jose C.
Tansingco, Miguel F emando C. Tangsingco,
Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta &
Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos
Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C.
Castor for themselves and on behalf of their
minor children, Renz Jeffrey C. Castor,
Joseph Ramil C. Castor, John Paul C. Castor
& Raphael C. Castor, Spouses Alexander R.
Racho & Zara Z. Racho for themselves and
on behalf of their minor children Margarita
Racho, Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred R.
Racho & Francine V. Racho for themselves
and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael
Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A.
Racho for themselves and on behalf of their

minor child Gabriel Racho, Mindy M. Juatas


and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws,
Joseph R . Laws & Katrina R.
Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of
Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department
of Social Welfare and Development, HON.
MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ARSENIO
M. BALISACAN, Socio-Economic Planning
Secretary and NEDA Director-General, THE
PHILIPPINE COMMISSION ON WOMEN,
represented by its Chairperson, Remedios
lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by
its President Eduardo Banzon, THE LEAGUE
OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali,
THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar
Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS,
INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA,
Secretary, Department of Education; and
HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC.,
represented by Dr. Nestor B. Lumicao, M.D.,
as President and in his personal capacity,
ROSEVALE FOUNDATION INC., represented

x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, HON.
SENATE PRESIDENT, HON. SPEAKER OF THE
HOUSE OF REPRESENTATIVES and HON.
SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC
XYBRSPACE APOSTOLATE OF THE
PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA
DIRECTOR SUZETTE H. LAZO, DBM
SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS
SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS,
INC. (PAX), herein represented by its
National President, Atty. Ricardo M . Ribo,
and in his own behalf, Atty. Lino E.A.
Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap,
Jaime F. Mateo, Rolly Siguan, Dante E.
Magdangal, Michael Eugenio O. Plana,
Bienvenido C. Miguel, Jr., Landrito M. Diokno

25
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by Dr. Rodrigo M. Alenton, M.D., as member


of the school board and in his personal
capacity, ROSEMARIE R. ALENTON, IMELDA
G. IBARRA, CPA, LOVENIAP. NACES, Phd.,
ANTHONY G. NAGAC, EARL ANTHONY C.
GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE
PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON.
ARMIN A. LUISTRO, Secretary, Department
of Education and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents.

and Baldomero Falcone, Petitioners,


vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, HON. CORAZON J. SOLIMAN,
Secretary, Department of Social Welfare
and Development, HON. ARSENIO
BALISACAN, Director-General, National
Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food
and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance
Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H.
KING, M.D., CYNTHIA T. DOMINGO, M.D.,
AND JOSEPHINE MILLADO-LUMITAO, M.D.,
collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G.
MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD,
Secretary of the Department of Budget and
Management; HON. ENRIQUE T. ONA,
Secretary of the Department of Health;
HON. ARMIN A. LUISTRO, Secretary of the
Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the
Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA
FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of
Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic
of the Philippines, Respondent.

26

G.R. No. 205720

x---------------------------------x

x---------------------------------x
G.R. No. 207172

PRO-LIFE PHILIPPINES FOUNDATION, Inc.,


represented by Loma Melegrito, as
Executive Director, and in her personal
capacity, JOSELYN B. BASILIO, ROBERT Z.
CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL
ANTONIO A. NIDOY, WINSTON CONRAD B.
PADOJINOG, RUFINO L. POLICARPIO
III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE
PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents.

COUPLES FOR CHRIST FOUNDATION, INC.,


SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGASARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE
VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department
of Interior and Local
Government, Respondents.

x---------------------------------x

ALMARIM CENTI TILLAH and ABDULHUSSEIN


M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA, Secretary
of the Department of Health, and HON.
ARMIN A. LUISTRO,Secretary of the
Department of Budget and
Management,Respondents.

G.R. No. 206355


MILLENNIUM SAINT FOUNDATION, INC.,
ATTY. RAMON PEDROSA, ATTY. CITA
BORROMEO-GARCIA, STELLAACEDERA, ATTY.
BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE
EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG,
ANTHONY VICTORIO B. LUMICAO, JOSEPH
MARTIN Q. VERDEJO, ANTONIA EMMA R.
ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO ABAD,
Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON.
MANUEL A. ROXAS II, Secretary, Department
of Interior and Local
Government, Respondents.

x---------------------------------x
G.R. No. 207563

DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status
by the framers of our fundamental law. And this
Court has consistently affirmed this preferred
status, well aware that it is "designed to protect
the broadest possible liberty of conscience, to
allow each man to believe as his conscience
directs, to profess his beliefs , and to live as he
believes he ought to live, consistent with the
liberty of others and with the common good."1
To this day, poverty is still a major stumbling
block to the nation's emergence as a developed
country, leaving our people beleaguered in a
state of hunger, illiteracy and unemployment.
While governmental policies have been geared
towards the revitalization of the economy, the
bludgeoning dearth in social services remains to
be a problem that concerns not only the poor, but

Nothing has polarized the nation more in recent


years than the issues of population growth
control, abortion and contraception. As in every
democratic society, diametrically opposed views
on the subjects and their perceived
consequences freely circulate in various media.
From television debates2 to sticker
campaigns,3 from rallies by socio-political
activists to mass gatherings organized by
members of the clergy4 - the clash between the
seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused
a deep division in every level of the society.
Despite calls to withhold support thereto,
however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and
Reproductive Health Act of 2012 (RH Law), was
enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur
on the said law, challengers from various sectors
of society came knocking on the doors of the
Court, beckoning it to wield the sword that strikes
down constitutional disobedience. Aware of the
profound and lasting impact that its decision may
produce, the Court now faces the iuris
controversy, as presented in fourteen (14)
petitions and two (2) petitions- in-intervention, to
wit:
(1) Petition for Certiorari and Prohibition,5 filed by
spouses Attys. James M. Imbong and Lovely Ann
C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their
minor children; and the Magnificat Child Leaming
Center, Inc., a domestic, privately-owned
educational institution (Jmbong);

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every member of society. The government


continues to tread on a trying path to the
realization of its very purpose, that is, the general
welfare of the Filipino people and the
development of the country as a whole. The
legislative branch, as the main facet of a
representative government, endeavors to enact
laws and policies that aim to remedy looming
societal woes, while the executive is closed set to
fully implement these measures and bring
concrete and substantial solutions within the
reach of Juan dela Cruz. Seemingly distant is the
judicial branch, oftentimes regarded as an inert
governmental body that merely casts its watchful
eyes on clashing stakeholders until it is called
upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly
embarks on its solemn duty to interpret
legislation vis-a-vis the most vital and enduring
principle that holds Philippine society together the supremacy of the Philippine Constitution.

(2) Petition for Prohibition,6 filed by the Alliance


for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S.
Noche7 and several others8 in their personal
capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force
for Family and Life Visayas, Inc., and Valeriano S.
Avila, in their capacities as citizens and taxpayers
(Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by
Serve Life Cagayan De Oro City, Inc.,11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in
their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in
his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by
Eduardo Olaguer and the Catholic Xybrspace
Apostolate of the Philippines,16 in their capacities
as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by
the Philippine Alliance of Xseminarians Inc.,18 and
several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D.
and several others,21 in their capacities as
citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by
spouses Francisco and Maria Fenny C. Tatad and
Atty. Alan F. Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn. Atty.
Alan F. Paguia is also proceeding in his capacity
as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed
by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens
and taxpayers and on behalf of its associates who
are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium
Saint Foundation, Inc.,27 Attys. Ramon Pedrosa,
Cita Borromeo-Garcia, Stella Acedera, and Berteni
Catalufia Causing, in their capacities as citizens,
taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed
by John Walter B. Juat and several others,29 in
their capacities as citizens (Juat) ;

(14) Petition for Prohibition32 filed by Almarim


Centi Tillah and Abdulhussein M. Kashim in their
capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty.
Samson S. Alcantara in his capacity as a citizen
and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay
Hayaang Yumabong (B UHAY) , an accredited
political party.
A perusal of the foregoing petitions shows that
the petitioners are assailing the constitutionality
of RH Law on the following GROUNDS:
The RH Law violates the right to life of the
unborn. According to the petitioners,
notwithstanding its declared policy against
abortion, the implementation of the RH Law
would authorize the purchase of hormonal
contraceptives, intra-uterine devices and
injectables which are abortives, in violation of
Section 12, Article II of the Constitution which
guarantees protection of both the life of the
mother and the life of the unborn from
conception.35
The RH Law violates the right to health and the
right to protection against hazardous products.
The petitioners posit that the RH Law provides
universal access to contraceptives which are
hazardous to one's health, as it causes cancer
and other health problems.36
The RH Law violates the right to religious
freedom. The petitioners contend that the RH Law
violates the constitutional guarantee respecting
religion as it authorizes the use of public funds for
the procurement of contraceptives. For the
petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens
conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as
it compels medical practitioners 1] to refer
patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full
and correct information on reproductive health
programs and service, although it is against their
religious beliefs and convictions.38

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(13) Petition for Certiorari and Prohibition,30 filed


by Couples for Christ Foundation, Inc. and several
others,31 in their capacities as citizens (CFC);

In this connection, Section 5 .23 of the


Implementing Rules and Regulations of the RH
Law (RH-IRR),39 provides that skilled health
professionals who are public officers such as, but
not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists,
rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives,
who are specifically charged with the duty to
implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the
formulation of mandatory sex education in
schools should not be allowed as it is an affront to
their religious beliefs.41
While the petit10ners recognize that the
guarantee of religious freedom is not absolute,
they argue that the RH Law fails to satisfy the
"clear and present danger test" and the
"compelling state interest test" to justify the
regulation of the right to free exercise of religion
and the right to free speech.42
The RH Law violates the constitutional provision
on involuntary servitude. According to the
petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they
are compelled to provide forty-eight (48) hours of
pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and
other forms of punishment.43
The petitioners explain that since a majority of
patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render
reproductive health services since the lack of
PhilHealth accreditation would mean that the
majority of the public would no longer be able to
avail of the practitioners services.44
The RH Law violates the right to equal
protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes
them the primary target of the government
program that promotes contraceptive use. The
petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law
seeks to introduce contraceptives that would
effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation
of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or fine
for "any violation," it is vague because it does not
define the type of conduct to be treated as
"violation" of the RH Law.46

The RH Law violates the right to free speech. To


compel a person to explain a full range of family
planning methods is plainly to curtail his right to
expound only his own preferred way of family
planning. The petitioners note that although
exemption is granted to institutions owned and
operated by religious groups, they are still forced
to refer their patients to another healthcare
facility willing to perform the service or
procedure.48
The RH Law intrudes into the zone of privacy of
one's family protected by the Constitution. It is
contended that the RH Law providing for
mandatory reproductive health education
intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to
the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of
spouses to mutually decide on matters pertaining
to the overall well-being of their family. In the
same breath, it is also claimed that the parents of
a child who has suffered a miscarriage are
deprived of parental authority to determine
whether their child should use contraceptives.50
The RH Law violates the constitutional principle
of non-delegation of legislative authority. The
petitioners question the delegation by Congress
to the FDA of the power to determine whether a
product is non-abortifacient and to be included in
the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill
rule provision under Section 26( 1 ), Article VI of
the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy
of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM).
It is contended that the RH Law, providing for
reproductive health measures at the local
government level and the ARMM, infringes upon

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In this connection, it is claimed that "Section 7 of


the RH Law violates the right to due process by
removing from them (the people) the right to
manage their own affairs and to decide what kind
of health facility they shall be and what kind of
services they shall offer."47 It ignores the
management prerogative inherent in corporations
for employers to conduct their affairs in
accordance with their own discretion and
judgment.

the powers devolved to LGUs and the ARMM


under the Local Government Code and R.A . No.
9054.54
Various parties also sought and were granted
leave to file their respective comments-inintervention in defense of the constitutionality of
the RH Law. Aside from the Office of the Solicitor
General (OSG) which commented on the petitions
in behalf of the respondents,55 Congressman
Edcel C. Lagman,56 former officials of the
Department of Health Dr. Esperanza I. Cabral,
Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed
their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted
leave to intervene.61
The respondents, aside from traversing the
substantive arguments of the petitioners, pray for
the dismissal of the petitions for the principal
reasons that 1] there is no actual case or
controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some
petitioners lack standing to question the RH Law;
and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no
original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the
enforcement of the assailed legislation took
effect.
On March 19, 2013, after considering the issues
and arguments raised, the Court issued the
Status Quo Ante Order (SQAO), enjoining the
effects and implementation of the assailed
legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary
conference with the counsels of the parties to
determine and/or identify the pertinent issues
raised by the parties and the sequence by which
these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on
August 6, 13, and 27, 2013, the cases were heard
on oral argument. On July 16, 2013, the SQAO
was ordered extended until further orders of the
Court.63
Thereafter, the Court directed the parties to
submit their respective memoranda within sixty
(60) days and, at the same time posed several
questions for their clarification on some
contentions of the parties.64

Prior to the RH Law


Long before the incipience of the RH Law, the
country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices.
As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the
Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although
contraceptive drugs and devices were allowed,
they could not be sold, dispensed or distributed
"unless such sale, dispensation and distribution is
by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified
medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21,
1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances
and devices." Under Section 37 thereof, it was
provided that "no drug or chemical product or
device capable of provoking abortion or
preventing conception as classified by the Food
and Drug Administration shall be delivered or sold
to any person without a proper prescription by a
duly licensed physician."
On December 11, 1967, the Philippines, adhering
to the UN Declaration on Population, which
recognized that the population problem should be
considered as the principal element for long-term
economic development, enacted measures that
promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these
measures included R.A. No. 6365, approved on
August 16, 1971, entitled "An Act Establishing a
National Policy on Population, Creating the
Commission on Population and for Other
Purposes. " The law envisioned that "family
planning will be made part of a broad educational
program; safe and effective means will be
provided to couples desiring to space or limit
family size; mortality and morbidity rates will be
further reduced."
To further strengthen R.A. No. 6365, then
President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972,
which, among others, made "family planning a
part of a broad educational program," provided
"family planning services as a part of over-all
health care," and made "available all acceptable
methods of contraception, except abortion, to all

30

(Population, Contraceptive and Reproductive


Health Laws

The Status Quo Ante

Filipino citizens desirous of spacing, limiting or


preventing pregnancies."
Through the years, however, the use of
contraceptives and family planning methods
evolved from being a component of demographic
management, to one centered on the promotion
of public health, particularly, reproductive
health.69 Under that policy, the country gave
priority to one's right to freely choose the method
of family planning to be adopted, in conformity
with its adherence to the commitments made in
the International Conference on Population and
Development.70 Thus, on August 14, 2009, the
country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others,
mandated the State to provide for comprehensive
health services and programs for women,
including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the
population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just
over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year
2000 and over 92 million in 2010.72 The executive
and the legislative, thus, felt that the measures
were still not adequate. To rein in the problem,
the RH Law was enacted to provide Filipinos,
especially the poor and the marginalized, access
and information to the full range of modem family
planning methods, and to ensure that its
objective to provide for the peoples' right to
reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for
health providers to provide information on the full
range of modem family planning methods,
supplies and services, and for schools to provide
reproductive health education. To put teeth to it,
the RH Law criminalizes certain acts of refusals to
carry out its mandates.
Stated differently, the RH Law is an enhancement
measure to fortify and make effective the current
laws on contraception, women's health and
population control.
Prayer of the Petitioners - Maintain the Status
Quo
The petitioners are one in praying that the entire
RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government
sponsored contraception program, the very
essence of the RH Law, violates the right to
health of women and the sanctity of life, which
the State is mandated to protect and promote.

x x x. The instant Petition does not question


contraception and contraceptives per se. As
provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of
contraceptives are prohibited unless dispensed
by a prescription duly licensed by a physician.
What the Petitioners find deplorable and
repugnant under the RH Law is the role that the
State and its agencies - the entire bureaucracy,
from the cabinet secretaries down to the
barangay officials in the remotest areas of the
country - is made to play in the implementation
of the contraception program to the fullest extent
possible using taxpayers' money. The State then
will be the funder and provider of all forms of
family planning methods and the implementer of
the program by ensuring the widespread
dissemination of, and universal access to, a full
range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and
contentions of the parties, the Court has
synthesized and refined them to the following
principal issues:
I. PROCEDURAL: Whether the Court may exercise
its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is
unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free
Speech

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Thus, ALFI prays that "the status quo ante - the


situation prior to the passage of the RH Law must be maintained."73 It explains:

4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH
Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can
exercise its power of judicial review over the
controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its
judicial hand, the OSG asserts that it should
submit to the legislative and political wisdom of
Congress and respect the compromises made in
the crafting of the RH Law, it being "a product of
a majoritarian democratic process"75 and
"characterized by an inordinate amount of
transparency."76 The OSG posits that the authority
of the Court to review social legislation like the
RH Law by certiorari is "weak," since the
Constitution vests the discretion to implement
the constitutional policies and positive norms with
the political departments, in particular, with
Congress.77 It further asserts that in view of the
Court's ruling in Southern Hemisphere v. AntiTerrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are
improper to assail the validity of the acts of the
legislature.79
Moreover, the OSG submits that as an "as applied
challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied
to the petitioners, and that the government has
yet to distribute reproductive health devices that
are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speechregulating measure.80
In many cases involving the determination of the
constitutionality of the actions of the Executive
and the Legislature, it is often sought that the

Thus, the 1987 Constitution provides that: (a) the


legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall
be vested in the President of the
Philippines;83 and (c) the judicial power shall be
vested in one Supreme Court and in such lower
courts as may be established by law.84 The
Constitution has truly blocked out with deft
strokes and in bold lines, the allotment of powers
among the three branches of government.85
In its relationship with its co-equals, the Judiciary
recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint,
born of the nature of their functions and of their
respect for the other branches of government, in
striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy
is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in
times of social disquietude or political instability,
the great landmarks of the Constitution are apt to
be forgotten or marred, if not entirely
obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect
the acts performed by a co-equal branch done
within its sphere of competence and authority,
but at the same time, allows it to cross the line of
separation - but only at a very limited and
specific point - to determine whether the acts of
the executive and the legislative branches are
null because they were undertaken with grave
abuse of discretion.88 Thus, while the Court may
not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate
its unflinching commitment to protect those
cherished rights and principles embodied in the
Constitution.
In this connection, it bears adding that while the
scope of judicial power of review may be limited,
the Constitution makes no distinction as to the
kind of legislation that may be subject to judicial
scrutiny, be it in the form of social legislation or

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Court temper its exercise of judicial power and


accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation
of powers. To be clear, the separation of powers is
a fundamental principle in our system of
government, which obtains not through express
provision but by actual division in our
Constitution. Each department of the government
has exclusive cognizance of matters within its
jurisdiction and is supreme within its own
sphere.81

otherwise. The reason is simple and goes back to


the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the
executive branches, since its duty is not to review
their collective wisdom but, rather, to make sure
that they have acted in consonance with their
respective authorities and rights as mandated of
them by the Constitution. If after said review, the
Court finds no constitutional violations of any
sort, then, it has no more authority of proscribing
the actions under review.90 This is in line with
Article VIII, Section 1 of the Constitution which
expressly provides:
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has
unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise
constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative
and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary
course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v.
COMELEC,93Magallona v. Ermita,94 and countless
others. In Tanada, the Court wrote:
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. " Once a
"controversy as to the application or
interpretation of 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. [Emphasis
supplied]
In the scholarly estimation of former Supreme
Court Justice Florentino Feliciano, "judicial review

Lest it be misunderstood, it bears emphasizing


that the Court does not have the unbridled
authority to rule on just any and every claim of
constitutional violation. Jurisprudence is replete
with the rule that the power of judicial review is
limited by four exacting requisites, viz : (a) there
must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the
case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj
ect petitions do not present any actual case or
controversy because the RH Law has yet to be
implemented.97 They claim that the questions
raised by the petitions are not yet concrete and
ripe for adjudication since no one has been
charged with violating any of its provisions and
that there is no showing that any of the
petitioners' rights has been adversely affected by
its operation.98 In short, it is contended that
judicial review of the RH Law is premature.
An actual case or controversy means an existing
case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory,
lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not
sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciabledefinite and concrete, touching on the legal
relations of parties having adverse legal interests.
In other words, the pleadings must show an
active antagonistic assertion of a legal right, on
the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not
merely a theoretical question or issue. There
ought to be an actual and substantial controversy
admitting of specific relief through a decree
conclusive in nature, as distinguished from an
opinion advising what the law would be upon a
hypothetical state of facts.100

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is essential for the maintenance and enforcement


of the separation of powers and the balancing of
powers among the three great departments of
government through the definition and
maintenance of the boundaries of authority and
control between them. To him, judicial review is
the chief, indeed the only, medium of
participation - or instrument of intervention - of
the judiciary in that balancing operation.95

Corollary to the requirement of an actual case or


controversy is the requirement of ripeness.101 A
question is ripe for adjudication when the act
being challenged has had a direct adverse effect
on the individual challenging it. For a case to be
considered ripe for adjudication, it is a
prerequisite that something has then been
accomplished or performed by either branch
before a court may come into the picture, and the
petitioner must allege the existence of an
immediate or threatened injury to himself as a
result of the challenged action. He must show
that he has sustained or is immediately in danger
of sustaining some direct injury as a result of the
act complained of102
In The Province of North Cotabato v. The
Government of the Republic of the
Philippines,103 where the constitutionality of an
unimplemented Memorandum of Agreement on
the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no
authority to pass upon the issues raised as there
was yet no concrete act performed that could
possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question
being not yet effective does not negate ripeness.
Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular
violation of the Constitution and/or the law is
enough to awaken judicial duty.
In this case, the Court is of the view that an
actual case or controversy exists and that the
same is ripe for judicial determination.
Considering that the RH Law and its
implementing rules have already taken effect and
that budgetary measures to carry out the law
have already been passed, it is evident that the
subject petitions present a justiciable controversy.
As stated earlier, when an action of the legislative
branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also
a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the
case is so because medical practitioners or
medical providers are in danger of being
criminally prosecuted under the RH Law for vague
violations thereof, particularly public health
officers who are threatened to be dismissed from
the service with forfeiture of retirement and other
benefits. They must, at least, be heard on the
matter NOW.
Facial Challenge

The Court is not persuaded.


In United States (US) constitutional law, a facial
challenge, also known as a First Amendment
Challenge, is one that is launched to assail the
validity of statutes concerning not only protected
speech, but also all other rights in the First
Amendment.106 These include religious freedom,
freedom of the press, and the right of the people
to peaceably assemble, and to petition the
Government for a redress of grievances.107 After
all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are
but component rights of the right to one's
freedom of expression, as they are modes which
one's thoughts are externalized.
In this jurisdiction, the application of doctrines
originating from the U.S. has been generally
maintained, albeit with some modifications. While
this Court has withheld the application of facial
challenges to strictly penal statues,108 it has
expanded its scope to cover statutes not only
regulating free speech, but also those involving
religious freedom, and other fundamental
rights.109 The underlying reason for this
modification is simple. For unlike its counterpart
in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law
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.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever
vigilant with its duty to maintain the supremacy
of the Constitution.
Consequently, considering that the foregoing
petitions have seriously alleged that the
constitutional human rights to life, speech and
religion and other fundamental rights mentioned
above have been violated by the assailed
legislation, the Court has authority to take
cognizance of these kindred petitions and to
determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions
on the simple expedient that there exist no actual
case or controversy, would diminish this Court as
a reactive branch of government, acting only
when the Fundamental Law has been

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The OSG also assails the propriety of the facial


challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged
"on its face" as it is not a speech regulating
measure.105

transgressed, to the detriment of the Filipino


people.
Locus Standi
The OSG also attacks the legal personality of the
petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged
by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against
them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke
the "transcendental importance" doctrine and
their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a
personal and substantial interest in a case such
that the party has sustained or will sustain direct
injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome
of the controversy as to assure the concrete
adverseness which sharpens the presentation of
issues upon which the court so largely depends
for illumination of difficult constitutional
questions.114
In relation to locus standi, the "as applied
challenge" embodies the rule that one can
challenge the constitutionality of a statute only if
he asserts a violation of his own rights. The rule
prohibits one from challenging the
constitutionality of the statute grounded on a
violation of the rights of third persons not before
the court. This rule is also known as the
prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine
that "the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public
interest so requires, such as when the matter is of
transcendental importance, of overreaching
significance to society, or of paramount public
interest."116
In Coconut Oil Refiners Association, Inc. v.
Torres,117 the Court held that in cases of
paramount importance where serious
constitutional questions are involved, the
standing requirement may be relaxed and a suit
may be allowed to prosper even where there is no
direct injury to the party claiming the right of
judicial review. In the first Emergency Powers

With these said, even if the constitutionality of


the RH Law may not be assailed through an "asapplied challenge, still, the Court has time and
again acted liberally on the locus s tandi
requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or
with material interest affected by a Government
act, provided a constitutional issue of
transcendental importance is invoked. The rule
on locus standi is, after all, a procedural
technicality which the Court has, on more than
one occasion, waived or relaxed, thus allowing
non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in
the public interest, albeit they may not have been
directly injured by the operation of a law or any
other government act. As held in Jaworski v.
PAGCOR:119

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Cases,118 ordinary citizens and taxpayers were


allowed to question the constitutionality of
several executive orders although they had only
an indirect and general interest shared in
common with the public.

mother and the unborn which is primarily at


issue, the Court need not wait for a life to be
taken away before taking action.
The Court cannot, and should not, exercise
judicial restraint at this time when rights
enshrined in the Constitution are being imperilled
to be violated. To do so, when the life of either
the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because
they are essentially petitions for declaratory relief
over which the Court has no original
jurisdiction.120 Suffice it to state that most of the
petitions are praying for injunctive reliefs and so
the Court would just consider them as petitions
for prohibition under Rule 65, over which it has
original jurisdiction. Where the case has farreaching implications and prays for injunctive
reliefs, the Court may consider them as petitions
for prohibition under Rule 65.121

Granting arguendo that the present action cannot


be properly treated as a petition for prohibition,
the transcendental importance of the issues
involved in this case warrants that we set aside
the technical defects and take primary
jurisdiction over the petition at bar. One cannot
deny that the issues raised herein have
potentially pervasive influence on the social and
moral well being of this nation, specially the
youth; hence, their proper and just determination
is an imperative need. This is in accordance with
the well-entrenched principle that rules of
procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the
administration of justice. Their strict and rigid
application, which would result in technicalities
that tend to frustrate, rather than promote
substantial justice, must always be eschewed.
(Emphasis supplied)

One Subject-One Title

In view of the seriousness, novelty and weight as


precedents, not only to the public, but also to the
bench and bar, the issues raised must be
resolved for the guidance of all. After all, the RH
Law drastically affects the constitutional
provisions on the right to life and health, the
freedom of religion and expression and other
constitutional rights. Mindful of all these and the
fact that the issues of contraception and
reproductive health have already caused deep
division among a broad spectrum of society, the
Court entertains no doubt that the petitions raise
issues of transcendental importance warranting
immediate court adjudication. More importantly,
considering that it is the right to life of the

Despite efforts to push the RH Law as a


reproductive health law, the Court sees it as
principally a population control measure. The
corpus of the RH Law is geared towards the
reduction of the country's population. While it
claims to save lives and keep our women and
children healthy, it also promotes pregnancypreventing products. As stated earlier, the RH
Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with
access to information on the full range of modem
family planning products and methods. These
family planning methods, natural or modem,
however, are clearly geared towards the
prevention of pregnancy.

The petitioners also question the constitutionality


of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing
the one subject-one title rule. According to them,
being one for reproductive health with
responsible parenthood, the assailed legislation
violates the constitutional standards of due
process by concealing its true intent - to act as a
population control measure.123
To belittle the challenge, the respondents insist
that the RH Law is not a birth or population
control measure,124and that the concepts of
"responsible parenthood" and "reproductive
health" are both interrelated as they are
inseparable.125

It cannot be denied that the measure also seeks


to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the
dissemination of information and provisions on
access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality
reproductive health care services, methods,
devices, and supplies, which are all intended to
prevent pregnancy.
The Court, thus, agrees with the petitioners'
contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the
central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are
related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other
positive provisions such as skilled birth
attendance, maternal care including pre-and
post-natal services, prevention and management
of reproductive tract infections including HIV/AIDS
are already provided for in the Magna Carta for
Women."128
Be that as it may, the RH Law does not violate
the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and
Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject"
rule does not require the Congress to employ in
the title of the enactment language of such
precision as to mirror, fully index or catalogue all
the contents and the minute details therein. The
rule is sufficiently complied with if the title is
comprehensive enough as to include the general
object which the statute seeks to effect, and
where, as here, the persons interested are
informed of the nature, scope and consequences
of the proposed law and its operation. Moreover,
this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not
to cripple or impede legislation." [Emphases
supplied]
In this case, a textual analysis of the various
provisions of the law shows that both
"reproductive health" and "responsible
parenthood" are interrelated and germane to the
overriding objective to control the population
growth. As expressed in the first paragraph of
Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State
recognizes and guarantees the human rights of

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For said reason, the manifest underlying objective


of the RH Law is to reduce the number of births in
the country.

all persons including their right to equality and


nondiscrimination of these rights, the right to
sustainable human development, the right to
health which includes reproductive health, the
right to education and information, and the right
to choose and make decisions for themselves in
accordance with their religious convictions,
ethics, cultural beliefs, and the demands of
responsible parenthood.
The one subject/one title rule expresses the
principle that the title of a law must not be "so
uncertain that the average person reading it
would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or
which is misleading, either in referring to or
indicating one subject where another or different
one is really embraced in the act, or in omitting
any expression or indication of the real subject or
scope of the act."129
Considering the close intimacy between
"reproductive health" and "responsible
parenthood" which bears to the attainment of the
goal of achieving "sustainable human
development" as stated under its terms, the
Court finds no reason to believe that Congress
intentionally sought to deceive the public as to
the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it
violates the right to life and health of the unborn
child under Section 12, Article II of the
Constitution. The assailed legislation allowing
access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express
terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to
the intent of the Framers of the Constitution to
afford protection to the fertilized ovum which
already has life.
They argue that even if Section 9 of the RH Law
allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables
and other safe, legal, non-abortifacient and
effective family planning products and supplies,
medical research shows that contraceptives use

As it opposes the initiation of life, which is a


fundamental human good, the petitioners assert
that the State sanction of contraceptive use
contravenes natural law and is an affront to the
dignity of man.132
Finally, it is contended that since Section 9 of the
RH Law requires the Food and Drug
Administration (FDA) to certify that the product or
supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering
that the FDA is not the agency that will actually
supervise or administer the use of these products
and supplies to prospective patients, there is no
way it can truthfully make a certification that it
shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point
out that the intent of the Framers of the
Constitution was simply the prohibition of
abortion. They contend that the RH Law does not
violate the Constitution since the said law
emphasizes that only "non-abortifacient"
reproductive health care services, methods,
devices products and supplies shall be made
accessible to the public.134
According to the OSG, Congress has made a
legislative determination that contraceptives are
not abortifacients by enacting the RH Law. As the
RH Law was enacted with due consideration to
various studies and consultations with the World
Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court
afford deference and respect to such a
determination and pass judgment only when a
particular drug or device is later on determined
as an abortive.135
For his part, respondent Lagman argues that the
constitutional protection of one's right to life is
not violated considering that various studies of
the WHO show that life begins from the
implantation of the fertilized ovum.
Consequently, he argues that the RH Law is
constitutional since the law specifically provides
that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every
human being enjoys the right to life.137

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results in abortion as they operate to kill the


fertilized ovum which already has life.131

Even if not formally established, the right to life,


being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more
than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life,
liberty, or property without due process of law,
nor shall any person be denied the equal
protection of the laws.
As expounded earlier, the use of contraceptives
and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A.
No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive
Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which
prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the
ratification of numerous international
agreements, the country has long recognized the
need to promote population control through the
use of contraceptives in order to achieve longterm economic development. Through the years,
however, the use of contraceptives and other
family planning methods evolved from being a
component of demographic management, to one
centered on the promotion of public health,
particularly, reproductive health.140
This has resulted in the enactment of various
measures promoting women's rights and health
and the overall promotion of the family's wellbeing. Thus, aside from R.A. No. 4729, R.A. No.
6365 or "The Population Act of the Philippines"
and R.A. No. 9710, otherwise known as the "The
Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the
Philippine national population program has
always been grounded two cornerstone
principles: "principle of no-abortion" and the
"principle of non-coercion."141 As will be discussed
later, these principles are not merely grounded
on administrative policy, but rather, originates
from the constitutional protection expressly
provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the
position that the question of when life begins is a
scientific and medical issue that should not be
decided, at this stage, without proper hearing and

In this regard, the ponente, is of the strong view


that life begins at fertilization.
In answering the question of when life begins,
focus should be made on the particular phrase of
Section 12 which reads:
Section 12. The State recognizes the sanctity of
family life and shall protect and strengthen the
family as a basic autonomous social institution. It
shall equally protect the life of the mother and
the life of the unborn from conception. The
natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and
the development of moral character shall receive
the support of the Government.
Textually, the Constitution affords protection to
the unborn from conception. This is undisputable
because before conception, there is no unborn to
speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior
to conception or when life begins. The problem
has arisen because, amazingly, there are quarters
who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization.
They are waving the view that life begins at
implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend
that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the
other side of the spectrum are those who assert
that conception refers to the "implantation" of the
fertilized ovum in the uterus.143

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evidence. During the deliberation, however, it


was agreed upon that the individual members of
the Court could express their own views on this
matter.

understood in the sense they have in common


use. What it says according to the text of the
provision to be construed compels acceptance
and negates the power of the courts to alter it,
based on the postulate that the framers and the
people mean what they say. Verba legis non est
recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially twofold: First, because it is assumed that the words
in which constitutional provisions are couched
express the objective sought to be attained; and
second, because the Constitution is not primarily
a lawyer's document but essentially that of the
people, in whose consciousness it should ever be
present as an important condition for the rule of
law to prevail.
In conformity with the above principle, the
traditional meaning of the word "conception"
which, as described and defined by all reliable
and reputable sources, means that life begins at
fertilization.
Webster's Third New International Dictionary
describes it as the act of becoming pregnant,
formation of a viable zygote; the fertilization that
results in a new entity capable of developing into
a being like its parents.145
Black's Law Dictionary gives legal meaning to the
term "conception" as the fecundation of the
female ovum by the male spermatozoon resulting
in human life capable of survival and maturation
under normal conditions.146
Even in jurisprudence, an unborn child has
already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited
Voluntary Arbitrator Allan S. Montano,147 it was
written:

Plain and Legal Meaning


It is a canon in statutory construction that the
words of the Constitution should be interpreted in
their plain and ordinary meaning. As held in the
recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory
construction is that where the words of a statute
are clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without
attempted interpretation. It is a well-settled
principle of constitutional construction that the
language employed in the Constitution must be
given their ordinary meaning except where
technical terms are employed. As much as
possible, the words of the Constitution should be

Life is not synonymous with civil personality. One


need not acquire civil personality first before
he/she could die. Even a child inside the womb
already has life. No less than the Constitution
recognizes the life of the unborn from conception,
that the State must protect equally with the life of
the mother. If the unborn already has life, then
the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the
original]
In Gonzales v. Carhart,148 Justice Anthony
Kennedy, writing for the US Supreme Court, said
that the State "has respect for human life at all
stages in the pregnancy" and "a legitimate and
substantial interest in preserving and promoting

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fetal life." Invariably, in the decision, the fetus


was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also
shed light on the intention of the Framers
regarding the term "conception" used in Section
12, Article II of the Constitution. From their
deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a
sentence which reads:
"The State shall equally protect the life of the
mother and the life of the unborn from the
moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship
speech, it is when the ovum is fertilized by the
sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from
fertilization and, as such, the beginning of human
life, it was explained:
Mr. Villegas: I propose to review this issue in a
biological manner. The first question that needs
to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized
ovum is alive. First of all, like all living organisms,
it takes in nutrients which it processes by itself. It
begins doing this upon fertilization. Secondly, as
it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in
the continuous process of cell division. All these
processes are vital signs of life. Therefore, there
is no question that biologically the fertilized ovum
has life.
The second question: Is it human? Genetics gives
an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the
sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I
repeat, only in human cells. Therefore, the
fertilized ovum is human.

Since these questions have been answered


affirmatively, we must conclude that if the
fertilized ovum is both alive and human, then, as
night follows day, it must be human life. Its
nature is human.151
Why the Constitution used the phrase "from the
moment of conception" and not "from the
moment of fertilization" was not because of doubt
when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment
of conception" was described by us here before
with the scientific phrase "fertilized ovum" may
be beyond the comprehension of some people;
we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum
is given ample protection under the Constitution,
it was discussed:
Rev. Rigos: Yes, we think that the word "unborn"
is sufficient for the purpose of writing a
Constitution, without specifying "from the
moment of conception."
Mr. Davide: I would not subscribe to that
particular view because according to the
Commissioner's own admission, he would leave it
to Congress to define when life begins. So,
Congress can define life to begin from six months
after fertilization; and that would really be very,
very, dangerous. It is now determined by science
that life begins from the moment of conception.
There can be no doubt about it. So we should not
give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to
ask a question on that point. Actually, that is one
of the questions I was going to raise during the
period of interpellations but it has been
expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the
mother and the life of the unborn from the
moment of conception.
When it speaks of "from the moment of
conception," does this mean when the egg meets
the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the
sperm.

Mr. Villegas: Yes, if that physical fact is


established, then that is what is called
abortifacient and, therefore, would be
unconstitutional and should be banned under this
provision.
Mr. Gascon: Yes. So my point is that I do not think
it is up to Congress to state whether or not these
certain contraceptives are abortifacient.
Scientifically and based on the provision as it is
now proposed, they are already considered
abortifacient.154
From the deliberations above-quoted, it is
apparent that the Framers of the Constitution
emphasized that the State shall provide equal
protection to both the mother and the unborn
child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male
sperm and the female ovum. It is also apparent is
that the Framers of the Constitution intended that
to prohibit Congress from enacting measures that
would allow it determine when life begins.
Equally apparent, however, is that the Framers of
the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading
the need to have a constitutional provision on the
right to life, recognized that the determination of
whether a contraceptive device is an
abortifacient is a question of fact which should be
left to the courts to decide on based on
established evidence.155
From the discussions above, contraceptives that
kill or destroy the fertilized ovum should be
deemed an abortive and thus prohibited.
Conversely, contraceptives that actually prevent
the union of the male sperm and the female
ovum, and those that similarly take action prior to
fertilization should be deemed non-abortive, and
thus, constitutionally permissible.

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Mr. Gascon: Therefore that does not leave to


Congress the right to determine whether certain
contraceptives that we know today are
abortifacient or not because it is a fact that some
of the so-called contraceptives deter the rooting
of the ovum in the uterus. If fertilization has
already occurred, the next process is for the
fertilized ovum to travel towards the uterus and
to take root. What happens with some
contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus.
Therefore, if we take the provision as it is
proposed, these so called contraceptives should
be banned.

As emphasized by the Framers of the


Constitution:
xxx

xxx

xxx

Mr. Gascon: xx xx. As I mentioned in my speech


on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the
unborn, but also the lives of the millions of people
in the world by fighting for a nuclear-free world. I
would just like to be assured of the legal and
pragmatic implications of the term "protection of
the life of the unborn from the moment of
conception." I raised some of these implications
this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would
like to ask that question again for a categorical
answer.
I mentioned that if we institutionalize the term
"the life of the unborn from the moment of
conception" we are also actually saying "no," not
"maybe," to certain contraceptives which are
already being encouraged at this point in time. Is
that the sense of the committee or does it
disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because
contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was
speaking more about some contraceptives, such
as the intra-uterine device which actually stops
the egg which has already been fertilized from
taking route to the uterus. So if we say "from the
moment of conception," what really occurs is that
some of these contraceptives will have to be
unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the
fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited
by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it
was conceded that tubal ligation, vasectomy,
even condoms are not classified as
abortifacients.157
Atty. Noche: Before the union of the eggs, egg
and the sperm, there is no life yet.
Justice Bersamin: There is no life.
Atty. Noche: So, there is no life to be protected.

Justice Bersamin: So you have no objection to


condoms?
Atty. Noche: Not under Section 12, Article II.
Justice Bersamin: Even if there is already
information that condoms sometimes have
porosity?
Atty. Noche: Well, yes, Your Honor, there are
scientific findings to that effect, Your Honor, but I
am discussing here Section 12, Article II, Your
Honor, yes.
Justice Bersamin: Alright.
Atty. Noche: And it's not, I have to admit it's not
an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not
bereft of medical foundation. Mosby s Medical,
Nursing, and Allied Health Dictionary defines
conception as "the beginning of pregnancy
usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and
female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological &
Pathological Obstetrics),161 used by medical
schools in the Philippines, also concludes that
human life (human person) begins at the moment
of fertilization with the union of the egg and the
sperm resulting in the formation of a new
individual, with a unique genetic composition that
dictates all developmental stages that ensue.
Similarly, recent medical research on the matter
also reveals that: "Human development begins
after the union of male and female gametes or
germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events
that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum)
and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the
mingling of their chromosomes to form a new
cell. This fertilized ovum, known as a zygote, is a
large diploid cell that is the beginning, or
primordium, of a human being."162

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Atty. Noche: Under Section 12, yes.

Justice Bersamin: To be protected.

The authors of Human Embryology &


Teratology163 mirror the same position. They
wrote: "Although life is a continuous process,
fertilization is a critical landmark because, under
ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The
combination of 23 chromosomes present in each
pronucleus results in 46 chromosomes in the
zygote. Thus the diploid number is restored and
the embryonic genome is formed. The embryo
now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical
Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood
Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the
RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because
it is at this stage that conception, and thus
human life, begins. Human lives are sacred from
the moment of conception, and that destroying
those new lives is never licit, no matter what the
purported good outcome would be. In terms of
biology and human embryology, a human being
begins immediately at fertilization and after that,
there is no point along the continuous line of
human embryogenesis where only a "potential"
human being can be posited. Any philosophical,
legal, or political conclusion cannot escape this
objective scientific fact.
The scientific evidence supports the conclusion
that a zygote is a human organism and that the
life of a new human being commences at a
scientifically well defined "moment of
conception." This conclusion is objective,
consistent with the factual evidence, and
independent of any specific ethical, moral,
political, or religious view of human life or of
human embryos.164
Conclusion: The Moment of Conception is
Reckoned from
Fertilization
In all, whether it be taken from a plain meaning,
or understood under medical parlance, and more
importantly, following the intention of the
Framers of the Constitution, the undeniable
conclusion is that a zygote is a human organism
and that the life of a new human being
commences at a scientifically well-defined
moment of conception, that is, upon fertilization.

This theory of implantation as the beginning of


life is devoid of any legal or scientific mooring. It
does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is
not an inanimate object - it is a living human
being complete with DNA and 46
chromosomes.168 Implantation has been
conceptualized only for convenience by those
who had population control in mind. To adopt it
would constitute textual infidelity not only to the
RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support
this position.
If such theory would be accepted, it would
unnervingly legitimize the utilization of any drug
or device that would prevent the implantation of
the fetus at the uterine wall. It would be
provocative and further aggravate religiousbased divisiveness.
It would legally permit what the Constitution
proscribes - abortion and abortifacients.

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For the above reasons, the Court cannot


subscribe to the theory advocated by Hon.
Lagman that life begins at
implantation.165 According to him, "fertilization
and conception are two distinct and successive
stages in the reproductive process. They are not
identical and synonymous."166 Citing a letter of
the WHO, he wrote that "medical authorities
confirm that the implantation of the fertilized
ovum is the commencement of conception and it
is only after implantation that pregnancy can be
medically detected."167

abortion. While the Court has opted not to make


any determination, at this stage, when life
begins, it finds that the RH Law itself clearly
mandates that protection be afforded from the
moment of fertilization. As pointed out by Justice
Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the
fertilized ovum and that it should be afforded safe
travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is
a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or
expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of
this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access
to a full range of methods, facilities, services and
supplies that contribute to reproductive health
and well-being by addressing reproductive healthrelated problems. It also includes sexual health,
the purpose of which is the enhancement of life
and personal relations. The elements of
reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of
abortion complications;
xxx.

The RH Law and Abortion


The clear and unequivocal intent of the Framers
of the 1987 Constitution in protecting the life of
the unborn from conception was to prevent the
Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the
Framers was captured in the record of the
proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas,
the principal proponent of the protection of the
unborn from conception, explained:
The intention .. .is to make sure that there would
be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the
Supreme Court.169

2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights
of individuals and couples, to decide freely and
responsibly whether or not to have children; the
number, spacing and timing of their children; to
make other decisions concerning reproduction,
free of discrimination, coercion and violence; to
have the information and means to do so; and to
attain the highest standard of sexual health and
reproductive health: Provided, however, That
reproductive health rights do not include
abortion, and access to abortifacients.
3] xx x.

A reading of the RH Law would show that it is in


line with this intent and actually proscribes

The RH Law and Abortifacients


In carrying out its declared policy, the RH Law is
consistent in prohibiting abortifacients. To be
clear, Section 4(a) of the RH Law defines an
abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that
induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of
the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the
FDA.
As stated above, the RH Law mandates that
protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion
and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient
is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the
mother's womb; or
(c) Prevents the fertilized ovum to reach and be
implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the
petitioners, the Court finds that the RH Law,
consistent with the Constitution, recognizes that
the fertilized ovum already has life and that the
State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law,
first, prohibits any drug or device that induces
abortion (first kind), which, as discussed
exhaustively above, refers to that which induces
the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device
the fertilized ovum to reach and be implanted in
the mother's womb (third kind).

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SEC. 29. Repealing Clause. - Except for prevailing


laws against abortion, any law, presidential
decree or issuance, executive order, letter of
instruction, administrative order, rule or
regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No.
7392, otherwise known as the Midwifery Act, is
hereby repealed, modified or amended
accordingly.

By expressly declaring that any drug or device


that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an
abortifacient (third kind), the RH Law does not
intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also
does not declare either that protection will only
be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one,
there is a need to protect the fertilized ovum
which already has life, and two, the fertilized
ovum must be protected the moment it becomes
existent - all the way until it reaches and implants
in the mother's womb. After all, if life is only
recognized and afforded protection from the
moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing
or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch
as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at
fertilization, not at implantation. When a fertilized
ovum is implanted in the uterine wall , its viability
is sustained but that instance of implantation is
not the point of beginning of life. It started earlier.
And as defined by the RH Law, any drug or device
that induces abortion, that is, which kills or
destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the
proviso under Section 9 of the law that "any
product or supply included or to be included in
the EDL must have a certification from the FDA
that said product and supply is made available on
the condition that it is not to be used as an
abortifacient" as empty as it is absurd. The FDA,
with all its expertise, cannot fully attest that a
drug or device will not all be used as an
abortifacient, since the agency cannot be present
in every instance when the contraceptive product
or supply will be used.171
Pursuant to its declared policy of providing access
only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the
proviso of Section 9, as worded, should bend to
the legislative intent and mean that "any product
or supply included or to be included in the EDL
must have a certification from the FDA that said
product and supply is made available on the
condition that it cannot be used as abortifacient."
Such a construction is consistent with the proviso

Provided, further, That the foregoing offices shall


not purchase or acquire by any means
emergency contraceptive pills, postcoital pills,
abortifacients that will be used for such purpose
and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that
the authors of the RH-IRR gravely abused their
office when they redefined the meaning of
abortifacient. The RH Law defines "abortifacient"
as follows:
SEC. 4. Definition of Terms. - For the purpose of
this Act, the following terms shall be defined as
follows:
(a) Abortifacient refers to any drug or device that
induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of
the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the
FDA.
Section 3.0l (a) of the IRR, however, redefines
"abortifacient" as:
Section 3.01 For purposes of these Rules, the
terms shall be defined as follows:
a) Abortifacient refers to any drug or device that
primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention
of the fertilized ovum to reach and be implanted
in the mother's womb upon determination of the
Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR,
"contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective
and scientifically proven modern family planning
method, device, or health product, whether
natural or artificial, that prevents pregnancy but
does not primarily destroy a fertilized ovum or
prevent a fertilized ovum from being implanted in
the mother's womb in doses of its approved
indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR
allows "contraceptives" and recognizes as
"abortifacient" only those that primarily induce

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under the second paragraph of the same section


that provides:

abortion or the destruction of a fetus inside the


mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's
womb.172
This cannot be done.
In this regard, the observations of Justice Brion
and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word
"primarily," Section 3.0l(a) and G) of the RHIRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word
"primarily," in Section 3.0l(a) and G) of the RHIRR is indeed ultra vires. It contravenes Section
4(a) of the RH Law and should, therefore, be
declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the
way for the approval of contraceptives which may
harm or destroy the life of the unborn from
conception/fertilization in violation of Article II,
Section 12 of the Constitution. With such
qualification in the RH-IRR, it appears to insinuate
that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion
or, as pertinent here, the prevention of the
implantation of the fertilized ovum.
For the same reason, this definition of
"contraceptive" would permit the approval of
contraceptives which are actually abortifacients
because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the
certification by the FDA that these contraceptives
cannot act as abortive. With this, together with
the definition of an abortifacient under Section 4
(a) of the RH Law and its declared policy against
abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and
the EDL will not only be those contraceptives that
do not have the primary action of causing
abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's
womb, but also those that do not have the
secondary action of acting the same way.
Indeed, consistent with the constitutional policy
prohibiting abortion, and in line with the principle
that laws should be construed in a manner that
its constitutionality is sustained, the RH Law and
its implementing rules must be consistent with
each other in prohibiting abortion. Thus, the word
" primarily" in Section 3.0l(a) and G) of the RHIRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR
and prohibit only those contraceptives that have

To repeat and emphasize, in all cases, the


"principle of no abortion" embodied in the
constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the
right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in
the National Drug Formulary and the inclusion of
the same in the regular purchase of essential
medicines and supplies of all national
hospitals.176 Citing various studies on the matter,
the petitioners posit that the risk of developing
breast and cervical cancer is greatly increased in
women who use oral contraceptives as compared
to women who never use them. They point out
that the risk is decreased when the use of
contraceptives is discontinued. Further, it is
contended that the use of combined oral
contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a
twofold increased risk of ischematic stroke, and
an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive
health" and "sexual health" under Sections
4(p)178 and (w)179 of the RH Law, the petitioners
assert that the assailed legislation only seeks to
ensure that women have pleasurable and
satisfying sex lives.180
The OSG, however, points out that Section 15,
Article II of the Constitution is not self-executory,
it being a mere statement of the administration's
principle and policy. Even if it were self-executory,
the OSG posits that medical authorities refute the
claim that contraceptive pose a danger to the
health of women.181

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the primary effect of being an abortive would


effectively "open the floodgates to the approval
of contraceptives which may harm or destroy the
life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the
Constitution."175

A portion of Article XIII also specifically provides


for the States' duty to provide for the health of
the people, viz:
HEALTH
Section 11. The State shall adopt an integrated
and comprehensive approach to health
development which shall endeavor to make
essential goods, health and other social services
available to all the people at affordable cost.
There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide
free medical care to paupers.
Section 12. The State shall establish and maintain
an effective food and drug regulatory system and
undertake appropriate health, manpower
development, and research, responsive to the
country's health needs and problems.
Section 13. The State shall establish a special
agency for disabled person for their
rehabilitation, self-development, and self-reliance,
and their integration into the mainstream of
society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from
trade malpractices and from substandard or
hazardous products.
Contrary to the respondent's notion, however,
these provisions are self-executing. Unless the
provisions clearly express the contrary, the
provisions of the Constitution should be
considered self-executory. There is no need for
legislation to implement these self-executing
provisions.182 In Manila Prince Hotel v. GSIS,183 it
was stated:

A component to the right to life is the


constitutional right to health. In this regard, the
Constitution is replete with provisions protecting
and promoting the right to health. Section 15,
Article II of the Constitution provides:

x x x Hence, unless it is expressly provided that a


legislative act is necessary to enforce a
constitutional mandate, the presumption now is
that all provisions of the constitution are selfexecuting. If the constitutional provisions are
treated as requiring legislation instead of selfexecuting, the legislature would have the power
to ignore and practically nullify the mandate of
the fundamental law. This can be cataclysmic.
That is why the prevailing view is, as it has
always been, that

Section 15. The State shall protect and promote


the right to health of the people and instill health
consciousness among them.

... in case of doubt, the Constitution should be


considered self-executing rather than non-selfexecuting. . . . Unless the contrary is clearly

The Court's Position

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intended, the provisions of the Constitution


should be considered self-executing, as a contrary
rule would give the legislature discretion to
determine when, or whether, they shall be
effective. These provisions would be subordinated
to the will of the lawmaking body, which could
make them entirely meaningless by simply
refusing to pass the needed implementing
statute. (Emphases supplied)

"Section 1. It shall be unlawful for any person,


partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without
consideration, any contraceptive drug or device,
unless such sale, dispensation or distribution is
by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified
medical practitioner.
"Sec. 2 . For the purpose of this Act:

This notwithstanding, it bears mentioning that the


petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In
fact, ALFI prays that the status quo - under R.A.
No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited
when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH
Law in this regard is to leave intact the provisions
of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its
requirements are still in to be complied with.
Thus, the Court agrees with the observation of
respondent Lagman that the effectivity of the RH
Law will not lead to the unmitigated proliferation
of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices
will still require the prescription of a licensed
physician. With R.A. No. 4729 in place, there
exists adequate safeguards to ensure the public
that only contraceptives that are safe are made
available to the public. As aptly explained by
respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of
contraceptives, the same cannot be dispensed
and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate
the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic
Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and
for Other Purposes" are not repealed by the RH
Law and the provisions of said Acts are not
inconsistent with the RH Law.
110. Consequently, the sale, distribution and
dispensation of contraceptive drugs and devices
are particularly governed by RA No. 4729 which
provides in full:

"(a) "Contraceptive drug" is any medicine, drug,


chemical, or portion which is used exclusively for
the purpose of preventing fertilization of the
female ovum: and
"(b) "Contraceptive device" is any instrument,
device, material, or agent introduced into the
female reproductive system for the primary
purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation,
violating the provisions of this Act shall be
punished with a fine of not more than five
hundred pesos or an imprisonment of not less
than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general
manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals,
drugs and devices. No medicine, pharmaceutical,
or drug of whatever nature and kind or device
shall be compounded, dispensed, sold or resold,
or otherwise be made available to the consuming
public except through a prescription drugstore or
hospital pharmacy, duly established in
accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as
provided for in the RH Law and other relevant
statutes, the pretension of the petitioners that
the RH Law will lead to the unmitigated
proliferation of contraceptives, whether harmful
or not, is completely unwarranted and
baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in
connection with Section 10 of the RH Law which
provides:

(a) Number of women of reproductive age and


couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of
method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own
procurement, distribution and monitoring
program consistent with the overall provisions of
this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of
contraceptive drugs and devices, it must consider
the provisions of R.A. No. 4729, which is still in
effect, and ensure that the contraceptives that it
will procure shall be from a duly licensed drug
store or pharmaceutical company and that the
actual dispensation of these contraceptive drugs
and devices will done following a prescription of a
qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be
indiscriminately done. The public health must be
protected by all possible means. As pointed out
by Justice De Castro, a heavy responsibility and
burden are assumed by the government in
supplying contraceptive drugs and devices, for it
may be held accountable for any injury, illness or
loss of life resulting from or incidental to their
use.187
At any rate, it bears pointing out that not a single
contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to
await its determination which drugs or devices
are declared by the FDA as safe, it being the
agency tasked to ensure that food and medicines
available to the public are safe for public
consumption. Consequently, the Court finds that,
at this point, the attack on the RH Law on this
ground is premature. Indeed, the various kinds of
contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to
be determined as the case presents itself.
At this point, the Court is of the strong view that
Congress cannot legislate that hormonal

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SEC. 10. Procurement and Distribution of Family


Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of
family planning supplies for the whole country.
The DOH shall coordinate with all appropriate
local government bodies to plan and implement
this procurement and distribution program. The
supply and budget allotments shall be based on,
among others, the current levels and projections
of the following:

contraceptives and intra-uterine devices are safe


and non-abortifacient. The first sentence of
Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the
mandatory "shall" is to be construed as operative
only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has
the expertise to determine whether a particular
hormonal contraceptive or intrauterine device is
safe and non-abortifacient. The provision of the
third sentence concerning the requirements for
the inclusion or removal of a particular family
planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9
covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables,
and other safe, legal, non-abortifacient and
effective family planning products and supplies
by the National Drug Formulary in the EDL is not
mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, nonabortifacient and effective family planning
products and supplies. There can be no
predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient
and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like
vasectomy and tubal ligation are not covered by
the constitutional proscription, there are those
who, because of their religious education and
background, sincerely believe that
contraceptives, whether abortifacient or not, are
evil. Some of these are medical practitioners who
essentially claim that their beliefs prohibit not
only the use of contraceptives but also the willing
participation and cooperation in all things dealing
with contraceptive use. Petitioner PAX explained
that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the
transmission of life, and to the reciprocal selfgiving of the spouses; it harms true love and
denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored
procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives
violates the guarantee of religious freedom since

2. On Religious Accommodation and


The Duty to Refer

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contraceptives contravene their religious


beliefs.189

serious sin under Catholic teachings. While the


right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are
passive acts which produce neither harm nor
injury to the public.193

Petitioners Imbong and Luat note that while the


RH Law attempts to address religious sentiments
by making provisions for a conscientious objector,
the constitutional guarantee is nonetheless
violated because the law also imposes upon the
conscientious objector the duty to refer the
patient seeking reproductive health services to
another medical practitioner who would be able
to provide for the patient's needs. For the
petitioners, this amounts to requiring the
conscientious objector to cooperate with the very
thing he refuses to do without violating his/her
religious beliefs.190

Petitioner CFC adds that the RH Law does not


show compelling state interest to justify
regulation of religious freedom because it
mentions no emergency, risk or threat that
endangers state interests. It does not explain how
the rights of the people (to equality, nondiscrimination of rights, sustainable human
development, health, education, information,
choice and to make decisions according to
religious convictions, ethics, cultural beliefs and
the demands of responsible parenthood) are
being threatened or are not being met as to
justify the impairment of religious freedom.194

They further argue that even if the conscientious


objector's duty to refer is recognized, the
recognition is unduly limited, because although it
allows a conscientious objector in Section 23 (a)
(3) the option to refer a patient seeking
reproductive health services and information - no
escape is afforded the conscientious objector in
Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They
claim that the right of other individuals to
conscientiously object, such as: a) those working
in public health facilities referred to in Section 7;
b) public officers involved in the implementation
of the law referred to in Section 23(b ); and c)
teachers in public schools referred to in Section
14 of the RH Law, are also not recognize.191

Finally, the petitioners also question Section 15 of


the RH Law requiring would-be couples to attend
family planning and responsible parenthood
seminars and to obtain a certificate of
compliance. They claim that the provision forces
individuals to participate in the implementation of
the RH Law even if it contravenes their religious
beliefs.195 As the assailed law dangles the threat
of penalty of fine and/or imprisonment in case of
non-compliance with its provisions, the
petitioners claim that the RH Law forcing them to
provide, support and facilitate access and
information to contraception against their beliefs
must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.
The Respondents' Positions

Petitioner Echavez and the other medical


practitioners meanwhile, contend that the
requirement to refer the matter to another health
care service provider is still considered a
compulsion on those objecting healthcare service
providers. They add that compelling them to do
the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to
disregard the religion of Filipinos. Authorizing the
use of contraceptives with abortive effects,
mandatory sex education, mandatory pro-bono
reproductive health services to indigents
encroach upon the religious freedom of those
upon whom they are required.192
Petitioner CFC also argues that the requirement
for a conscientious objector to refer the person
seeking reproductive health care services to
another provider infringes on one's freedom of
religion as it forces the objector to become an
unwilling participant in the commission of a

The respondents, on the other hand, contend that


the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or
artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH
Law only seeks to serve the public interest by
providing accessible, effective and quality
reproductive health services to ensure maternal
and child health, in line with the State's duty to
bring to reality the social justice health
guarantees of the Constitution,197 and that what
the law only prohibits are those acts or practices,
which deprive others of their right to reproductive
health.198 They assert that the assailed law only
seeks to guarantee informed choice, which is an
assurance that no one will be compelled to
violate his religion against his free will.199
The respondents add that by asserting that only
natural family planning should be allowed, the
petitioners are effectively going against the

With respect to the duty to refer, the respondents


insist that the same does not violate the
constitutional guarantee of religious freedom, it
being a carefully balanced compromise between
the interests of the religious objector, on one
hand, who is allowed to keep silent but is required
to refer -and that of the citizen who needs access
to information and who has the right to expect
that the health care professional in front of her
will act professionally. For the respondents, the
concession given by the State under Section 7
and 23(a)(3) is sufficient accommodation to the
right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's
religious freedom is minimal as the duty to refer
is limited in duration, location and impact.203
Regarding mandatory family planning seminars
under Section 15 , the respondents claim that it is
a reasonable regulation providing an opportunity
for would-be couples to have access to
information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is
argued that those who object to any information
received on account of their attendance in the
required seminars are not compelled to accept
information given to them. They are completely
free to reject any information they do not agree
with and retain the freedom to decide on matters
of family life without intervention of the State.204
For their part, respondents De Venecia et al.,
dispute the notion that natural family planning is
the only method acceptable to Catholics and the
Catholic hierarchy. Citing various studies and
surveys on the matter, they highlight the
changing stand of the Catholic Church on
contraception throughout the years and note the
general acceptance of the benefits of
contraceptives by its followers in planning their
families.
The Church and The State
At the outset, it cannot be denied that we all live
in a heterogeneous society. It is made up of
people of diverse ethnic, cultural and religious
beliefs and backgrounds. History has shown us

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constitutional right to religious freedom, the same


right they invoked to assail the constitutionality
of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional,
the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned
natural family planning methods and impose this
on the entire citizenry.201

that our government, in law and in practice, has


allowed these various religious, cultural, social
and racial groups to thrive in a single society
together. It has embraced minority groups and is
tolerant towards all - the religious people of
different sects and the non-believers. The
undisputed fact is that our people generally
believe in a deity, whatever they conceived Him
to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law.
Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the
aid of Almighty God, in order to build a just and
humane society, and establish a Government that
shall embody our ideals and aspirations, promote
the common good, conserve and develop our
patrimony, and secure to ourselves and our
posterity, the blessings of independence and
democracy under the rule of law and a regime of
truth, justice, freedom, love, equality, and peace,
do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of
Almighty God " manifested their spirituality
innate in our nature and consciousness as a
people, shaped by tradition and historical
experience. As this is embodied in the preamble,
it means that the State recognizes with respect
the influence of religion in so far as it instills into
the mind the purest principles of
morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935,
1973 and 1987 constitutions contain benevolent
and accommodating provisions towards religions
such as tax exemption of church property, salary
of religious officers in government institutions,
and optional religious instructions in public
schools.
The Framers, however, felt the need to put up a
strong barrier so that the State would not
encroach into the affairs of the church, and viceversa. The principle of separation of Church and
State was, thus, enshrined in Article II, Section 6
of the 1987 Constitution, viz:
Section 6. The separation of Church and State
shall be inviolable.
Verily, the principle of separation of Church and
State is based on mutual
respect.1wphi1 Generally, the State cannot
meddle in the internal affairs of the church, much
less question its faith and dogmas or dictate upon
it. It cannot favor one religion and discriminate
against another. On the other hand, the church
cannot impose its beliefs and convictions on the

Consistent with the principle that not any one


religion should ever be preferred over another,
the Constitution in the above-cited provision
utilizes the term "church" in its generic sense,
which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically
symbolizes a religious organization. Thus, the
"Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and
the need to provide an ample barrier to protect
the State from the pursuit of its secular
objectives, the Constitution lays down the
following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987
Constitution:
Section. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be
appropriated, applied, paid, or employed, directly
or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian
institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or
dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or
government orphanage or leprosarium.
In short, the constitutional assurance of religious
freedom provides two guarantees: the
Establishment Clause and the Free Exercise
Clause.
The establishment clause "principally prohibits
the State from sponsoring any religion or favoring
any religion as against other religions. It
mandates a strict neutrality in affairs among
religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of
public resources for the support or prohibition of
a religion.

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State and the rest of the citizenry. It cannot


demand that the nation follow its beliefs, even if
it sincerely believes that they are good for the
country.

On the other hand, the basis of the free exercise


clause is the respect for the inviolability of the
human conscience.207 Under this part of religious
freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations
of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v.
Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits
legislation for the support of any religious tenets
or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance
of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148,
1153), but also assures the free exercise of one's
chosen form of religion within limits of utmost
amplitude. It has been said that the religion
clauses of the Constitution are all designed to
protect the broadest possible liberty of
conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent
with the liberty of others and with the common
good. Any legislation whose effect or purpose is
to impede the observance of one or all religions,
or to discriminate invidiously between the
religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert
v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by
enacting, within its power, a general law which
has for its purpose and effect to advance the
state's secular goals, the statute is valid despite
its indirect burden on religious observance,
unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct.
144; McGowan v. Maryland, 366 U.S. 420, 444-5
and 449).
As expounded in Escritor,
The establishment and free exercise clauses were
not designed to serve contradictory purposes.
They have a single goal-to promote freedom of
individual religious beliefs and practices. In
simplest terms, the free exercise clause prohibits
government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while
the establishment clause prohibits government
from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the
two religion clauses were intended to deny
government the power to use either the carrot or
the stick to influence individual religious beliefs
and practices.210

The realm of belief and creed is infinite and


limitless bounded only by one's imagination and
thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One
may believe in most anything, however strange,
bizarre and unreasonable the same may appear
to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of
said belief, there is quite a stretch of road to
travel.212
The second part however, is limited and subject
to the awesome power of the State and can be
enjoyed only with proper regard to the rights of
others. It is "subject to regulation where the belief
is translated into external acts that affect the
public welfare."213
Legislative Acts and the Free Exercise Clause
Thus, in case of conflict between the free exercise
clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been
clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework
underlying the Philippine Constitution."215 In the
same case, it was further explained that"
The benevolent neutrality theory believes that
with respect to these governmental actions,
accommodation of religion may be allowed, not to
promote the government's favored form of
religion, but to allow individuals and groups to
exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden
on, or facilitate the exercise of, a person's or
institution's religion."216 "What is sought under
the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but
an exemption from its application or its
'burdensome effect,' whether by the legislature or
the courts."217

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Corollary to the guarantee of free exercise of


one's religion is the principle that the guarantee
of religious freedom is comprised of two parts:
the freedom to believe, and the freedom to act on
one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211

In ascertaining the limits of the exercise of


religious freedom, the compelling state interest
test is proper.218Underlying the compelling state
interest test is the notion that free exercise is a
fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor,
it was written:
Philippine jurisprudence articulates several tests
to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and
present danger" test but did not employ it.
Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona
case then pronounced that the test of
permissibility of religious freedom is whether it
violates the established institutions of society and
law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the
doctrine that a law of general applicability may
burden religious exercise provided the law is the
least restrictive means to accomplish the goal of
the law. The case also used, albeit
inappropriately, the "compelling state interest"
test. After Victoriano , German went back to the
Gerona rule. Ebralinag then employed the "grave
and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the " clear and present
danger" test in the maiden case of A merican
Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or
"grave and immediate danger" test involved, in
one form or another, religious speech as this test
is often used in cases on freedom of expression.
On the other hand, the Gerona and German cases
set the rule that religious freedom will not prevail
over established institutions of society and law.
Gerona, however, which was the authority cited
by German has been overruled by Ebralinag
which employed the "grave and immediate
danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but
as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in A
merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and
"grave and immediate danger" tests were
appropriate as speech has easily discernible or
immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction.
Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The
"compelling state interest" test is proper where
conduct is involved for the whole gamut of

The Court's Position


In the case at bench, it is not within the province
of the Court to determine whether the use of
contraceptives or one's participation in the
support of modem reproductive health measures
is moral from a religious standpoint or whether
the same is right or wrong according to one's
dogma or belief. For the Court has declared that
matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and
rule of a church ... are unquestionably
ecclesiastical matters which are outside the
province of the civil courts."220 The jurisdiction of
the Court extends only to public and secular

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human conduct has different effects on the


state's interests: some effects may be immediate
and short-term while others delayed and farreaching. A test that would protect the interests
of the state in preventing a substantive evil,
whether immediate or delayed, is therefore
necessary. However, not any interest of the state
would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys
a preferred position in the hierarchy of rights "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is
sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government
is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and
humane society and establish a government." As
held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this
fundamental right. A mere balancing of interests
which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only
a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow
the state to batter religion, especially the less
powerful ones until they are destroyed. In
determining which shall prevail between the
state's interest and religious liberty,
reasonableness shall be the guide. The
"compelling state interest" serves the purpose of
revering religious liberty while at the same time
affording protection to the paramount interests of
the state. This was the test used in Sherbert
which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount
interests of the state, seeks to protect the very
state, without which, religious liberty will not be
preserved. [Emphases in the original. Underlining
supplied.]

morality. Whatever pronouncement the Court


makes in the case at bench should be understood
only in this realm where it has authority. Stated
otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have
authority to determine whether the RH Law
contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law
recognizes and respects religion and religious
beliefs and convictions. It is replete with
assurances the no one can be compelled to
violate the tenets of his religion or defy his
religious convictions against his free will.
Provisions in the RH Law respecting religious
freedom are the following:
1. The State recognizes and guarantees the
human rights of all persons including their right
to equality and nondiscrimination of these rights,
the right to sustainable human development, the
right to health which includes reproductive
health, the right to education and information,
and the right to choose and make decisions for
themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the
demands of responsible parenthood. [Section 2,
Declaration of Policy]
2 . The State recognizes marriage as an inviolable
social institution and the foundation of the family
which in turn is the foundation of the nation.
Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in
accordance with their religious convictions and
the demands of responsible parenthood."
[Section 2, Declaration of Policy]
3. The State shall promote and provide
information and access, without bias, to all
methods of family planning, including effective
natural and modern methods which have been
proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and
evidence-based medical research standards such
as those registered and approved by the FDA for
the poor and marginalized as identified through
the NHTS-PR and other government measures of
identifying marginalization: Provided, That the
State shall also provide funding support to
promote modern natural methods of family
planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors
and their religious convictions. [Section 3(e),
Declaration of Policy]

5. The State shall respect individuals' preferences


and choice of family planning methods that are in
accordance with their religious convictions and
cultural beliefs, taking into consideration the
State's obligations under various human rights
instruments. [Section 3(h)]
6. Active participation by nongovernment
organizations (NGOs) , women's and people's
organizations, civil society, faith-based
organizations, the religious sector and
communities is crucial to ensure that
reproductive health and population and
development policies, plans, and programs will
address the priority needs of women, the poor,
and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and
ability of a parent to respond to the needs and
aspirations of the family and children. It is
likewise a shared responsibility between parents
to determine and achieve the desired number of
children, spacing and timing of their children
according to their own family life aspirations,
taking into account psychological preparedness,
health status, sociocultural and economic
concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws
were enacted allowing the use of contraceptives.
To some medical practitioners, however, the
whole idea of using contraceptives is an
anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be
respected.
The Establishment Clause and Contraceptives
In the same breath that the establishment clause
restricts what the government can do with
religion, it also limits what religious sects can or
cannot do with the government. They can neither
cause the government to adopt their particular
doctrines as policy for everyone, nor can they not
cause the government to restrict other groups. To
do so, in simple terms, would cause the State to
adhere to a particular religion and, thus,
establishing a state religion.

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4. The State shall promote programs that: (1)


enable individuals and couples to have the
number of children they desire with due
consideration to the health, particularly of
women, and the resources available and
affordable to them and in accordance with
existing laws, public morals and their religious
convictions. [Section 3CDJ

Consequently, the petitioners are misguided in


their supposition that the State cannot enhance
its population control program through the RH
Law simply because the promotion of
contraceptive use is contrary to their religious
beliefs. Indeed, the State is not precluded to
pursue its legitimate secular objectives without
being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes
simply because it will cloud his conscience. The
demarcation line between Church and State
demands that one render unto Caesar the things
that are Caesar's and unto God the things that
are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to
promote reproductive health manifestly respects
diverse religious beliefs in line with the NonEstablishment Clause, the same conclusion
cannot be reached with respect to Sections 7, 23
and 24 thereof. The said provisions commonly
mandate that a hospital or a medical practitioner
to immediately refer a person seeking health care
and services under the law to another accessible
healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or
practice, the compelling state interest test in line
with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious
objector's claim to religious freedom would
warrant an exemption from obligations under the
RH Law, unless the government succeeds in
demonstrating a more compelling state interest
in the accomplishment of an important secular
objective. Necessarily so, the plea of
conscientious objectors for exemption from the
RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a
conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no
doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a
clean conscience yet under the pain of penalty.
The scenario is an illustration of the predicament
of medical practitioners whose religious beliefs
are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to
refer imposed by the RH Law violates the
religious belief and conviction of a conscientious

Though it has been said that the act of referral is


an opt-out clause, it is, however, a false
compromise because it makes pro-life health
providers complicit in the performance of an act
that they find morally repugnant or offensive.
They cannot, in conscience, do indirectly what
they cannot do directly. One may not be the
principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is
necessarily intertwined with the right to free
speech, it being an externalization of one's
thought and conscience. This in turn includes the
right to be silent. With the constitutional
guarantee of religious freedom follows the
protection that should be afforded to individuals
in communicating their beliefs to others as well
as the protection for simply being silent. The Bill
of Rights guarantees the liberty of the individual
to utter what is in his mind and the liberty not to
utter what is not in his mind.223 While the RH Law
seeks to provide freedom of choice through
informed consent, freedom of choice guarantees
the liberty of the religious conscience and
prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs
and moral convictions of individuals, on one
hand, and the interest of the State, on the other,
to provide access and information on
reproductive health products, services,
procedures and methods to enable the people to
determine the timing, number and spacing of the
birth of their children, the Court is of the strong
view that the religious freedom of health
providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious
objector should be exempt from compliance with
the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief
and conviction, it would be violative of "the
principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.

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objector. Once the medical practitioner, against


his will, refers a patient seeking information on
modem reproductive health products, services,
procedures and methods, his conscience is
immediately burdened as he has been compelled
to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free
exercise clause is the respect for the inviolability
of the human conscience.222

Interestingly, on April 24, 2013, Scotland's Inner


House of the Court of Session, found in the case
of Doogan and Wood v. NHS Greater Glasgow and
Clyde Health Board,225 that the midwives claiming
to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967,
could not be required to delegate, supervise or
support staff on their labor ward who were
involved in abortions.226 The Inner House stated
"that if 'participation' were defined according to
whether the person was taking part 'directly' or '
indirectly' this would actually mean more
complexity and uncertainty."227
While the said case did not cover the act of
referral, the applicable principle was the same they could not be forced to assist abortions if it
would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to nonmaternity specialty hospitals and hospitals owned
and operated by a religious group and health care
service providers. Considering that Section 24 of
the RH Law penalizes such institutions should
they fail or refuse to comply with their duty to
refer under Section 7 and Section 23(a)(3), the
Court deems that it must be struck down for
being violative of the freedom of religion. The
same applies to Section 23(a)(l) and (a)(2) in
relation to Section 24, considering that in the
dissemination of information regarding programs
and services and in the performance of
reproductive health procedures, the religious
freedom of health care service providers should
be respected.
In the case of Islamic Da'wah Council of the
Philippines, Inc. v. Office of the Executive
Secretary228 it was stressed:
Freedom of religion was accorded preferred status
by the framers of our fundamental law. And this
Court has consistently affirmed this preferred
status, well aware that it is "designed to protect
the broadest possible liberty of conscience, to
allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the
liberty of others and with the common good."10
The Court is not oblivious to the view that
penalties provided by law endeavour to ensure
compliance. Without set consequences for either
an active violation or mere inaction, a law tends
to be toothless and ineffectual. Nonetheless,
when what is bartered for an effective
implementation of a law is a constitutionally-

The Implementing Rules and Regulation (RH-IRR)


The last paragraph of Section 5.24 of the RH-IRR
reads:
Provided, That skilled health professional such as
provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives,
among others, who by virtue of their office are
specifically charged with the duty to implement
the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal
protection clause. The conscientious objection
clause should be equally protective of the
religious belief of public health officers. There is
no perceptible distinction why they should not be
considered exempt from the mandates of the law.
The protection accorded to other conscientious
objectors should equally apply to all medical
practitioners without distinction whether they
belong to the public or private sector. After all,
the freedom to believe is intrinsic in every
individual and the protective robe that
guarantees its free exercise is not taken off even
if one acquires employment in the government.
It should be stressed that intellectual liberty
occupies a place inferior to none in the hierarchy
of human values. The mind must be free to think
what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral
discourse or through the media and, thus, seek
other candid views in occasions or gatherings or
in more permanent aggrupation. Embraced in
such concept then are freedom of religion,
freedom of speech, of the press, assembly and
petition, and freedom of association.229
The discriminatory provision is void not only
because no such exception is stated in the RH
Law itself but also because it is violative of the
equal protection clause in the Constitution.
Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the
law must prevail.
Justice Mendoza: I'll go to another point. The RH
law .. .in your Comment- in-Intervention on page

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protected right the Court firmly chooses to stamp


its disapproval. The punishment of a healthcare
service provider, who fails and/or refuses to refer
a patient to another, or who declines to perform
reproductive health procedure on a patient
because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the
Court cannot allow.

52, you mentioned RH Law is replete with


provisions in upholding the freedom of religion
and respecting religious convictions. Earlier, you
affirmed this with qualifications. Now, you have
read, I presumed you have read the IRRImplementing Rules and Regulations of the RH
Bill?
Congressman Lagman: Yes, Your Honor, I have
read but I have to admit, it's a long IRR and I
have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza: I will read to you one provision.
It's Section 5.24. This I cannot find in the RH Law.
But in the IRR it says: " .... skilled health
professionals such as provincial, city or municipal
health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by
virtue of their office are specifically charged with
the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as
conscientious objectors." Do you agree with this?
Congressman Lagman: I will have to go over
again the provisions, Your Honor.
Justice Mendoza: In other words, public health
officers in contrast to the private practitioners
who can be conscientious objectors, skilled health
professionals cannot be considered conscientious
objectors. Do you agree with this? Is this not
against the constitutional right to the religious
belief?
Congressman Lagman: Your Honor, if there is any
conflict between the IRR and the law, the law
must prevail.230
Compelling State Interest
The foregoing discussion then begets the
question on whether the respondents, in defense
of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to
restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden
of proof that the obligatory character of the law is
the least intrusive means to achieve the
objectives of the law.
Unfortunately, a deep scrutiny of the
respondents' submissions proved to be in vain.
The OSG was curiously silent in the establishment
of a more compelling state interest that would
rationalize the curbing of a conscientious
objector's right not to adhere to an action
contrary to his religious convictions. During the
oral arguments, the OSG maintained the same

Justice De Castro: Let's go back to the duty of the


conscientious objector to refer. ..
Senior State Solicitor Hilbay: Yes, Justice.
Justice De Castro: ... which you are discussing
awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to
refer to a conscientious objector which refuses to
do so because of his religious belief?
Senior State Solicitor Hilbay: Ahh, Your Honor, ..
Justice De Castro: What is the compelling State
interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that
the standard is a compelling State interest, this is
an ordinary health legislation involving
professionals. This is not a free speech matter or
a pure free exercise matter. This is a regulation
by the State of the relationship between medical
doctors and their patients.231
Resultantly, the Court finds no compelling state
interest which would limit the free exercise clause
of the conscientious objectors, however few in
number. Only the prevention of an immediate and
grave danger to the security and welfare of the
community can justify the infringement of
religious freedom. If the government fails to show
the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the
freedom to believe. It also means the freedom to
act or not to act according to what one believes.
And this freedom is violated when one is
compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate
danger to the life or health of an individual in the
perceived scenario of the subject provisions. After
all, a couple who plans the timing, number and
spacing of the birth of their children refers to a
future event that is contingent on whether or not
the mother decides to adopt or use the
information, product, method or supply given to
her or whether she even decides to become
pregnant at all. On the other hand, the burden
placed upon those who object to contraceptive
use is immediate and occurs the moment a

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silence and evasion. The Transcripts of the


Stenographic Notes disclose the following:

patient seeks consultation on reproductive health


matters.
Moreover, granting that a compelling interest
exists to justify the infringement of the
conscientious objector's religious freedom, the
respondents have failed to demonstrate "the
gravest abuses, endangering paramount
interests" which could limit or override a person's
fundamental right to religious freedom. Also, the
respondents have not presented any government
effort exerted to show that the means it takes to
achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that
the act of referring would only be momentary,
considering that the act of referral by a
conscientious objector is the very action being
contested as violative of religious freedom, it
behooves the respondents to demonstrate that
no other means can be undertaken by the State
to achieve its objective without violating the
rights of the conscientious objector. The health
concerns of women may still be addressed by
other practitioners who may perform reproductive
health-related procedures with open willingness
and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance
deserves the protection of the Court as the last
vanguard of constitutional freedoms.
At any rate, there are other secular steps already
taken by the Legislature to ensure that the right
to health is protected. Considering other
legislations as they stand now, R.A . No. 4 729 or
the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No.
9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in
relation to health services and programs. The
pertinent provision of Magna Carta on
comprehensive health services and programs for
women, in fact, reads:
Section 17. Women's Right to Health. - (a)
Comprehensive Health Services. - The State shall,
at all times, provide for a comprehensive, culturesensitive, and gender-responsive health services
and programs covering all stages of a woman's
life cycle and which addresses the major causes
of women's mortality and morbidity: Provided,
That in the provision for comprehensive health
services, due respect shall be accorded to
women's religious convictions, the rights of the
spouses to found a family in accordance with
their religious convictions, and the demands of
responsible parenthood, and the right of women
to protection from hazardous drugs, devices,
interventions, and substances.

(2) Promotion of breastfeeding;


(3) Responsible, ethical, legal, safe, and effective
methods of family planning;
(4) Family and State collaboration in youth
sexuality education and health services without
prejudice to the primary right and duty of parents
to educate their children;
(5) Prevention and management of reproductive
tract infections, including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of reproductive
tract cancers like breast and cervical cancers,
and other gynecological conditions and disorders;
(7) Prevention of abortion and management of
pregnancy-related complications;
(8) In cases of violence against women and
children, women and children victims and
survivors shall be provided with comprehensive
health services that include psychosocial,
therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and
sexual dysfunction pursuant to ethical norms and
medical standards;
(10) Care of the elderly women beyond their
child-bearing years; and
(11) Management, treatment, and intervention of
mental health problems of women and girls. In
addition, healthy lifestyle activities are
encouraged and promoted through programs and
projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and
Education. - The State shall provide women in all
sectors with appropriate, timely, complete, and
accurate information and education on all the
above-stated aspects of women's health in
government education and training programs,
with due regard to the following:

57

(1) Maternal care to include pre- and post-natal


services to address pregnancy and infant health
and nutrition;

Access to the following services shall be ensured:

(1) The natural and primary right and duty of


parents in the rearing of the youth and the
development of moral character and the right of
children to be brought up in an atmosphere of
morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that
affirms human dignity; and
(3) Ethical, legal, safe, and effective family
planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay
eventually replied that the compelling state
interest was "Fifteen maternal deaths per day,
hundreds of thousands of unintended
pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by
concrete facts and figures from reputable
sources.
The undisputed fact, however, is that the World
Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent
from 1990 to 2008, 236 although there was still no
RH Law at that time. Despite such revelation, the
proponents still insist that such number of
maternal deaths constitute a compelling state
interest.
Granting that there are still deficiencies and flaws
in the delivery of social healthcare programs for
Filipino women, they could not be solved by a
measure that puts an unwarrantable stranglehold
on religious beliefs in exchange for blind
conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly
recognizes a valid exception set forth in the law.
While generally healthcare service providers
cannot be forced to render reproductive health
care procedures if doing it would contravene their
religious beliefs, an exception must be made in
life-threatening cases that require the
performance of emergency procedures. In these
situations, the right to life of the mother should
be given preference, considering that a referral
by a medical practitioner would amount to a
denial of service, resulting to unnecessarily
placing the life of a mother in grave danger. Thus,
during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral
clause that we are objecting on grounds of
violation of freedom of religion does not
contemplate an emergency."237

Principle of Double-Effect. - May we please


remind the principal author of the RH Bill in the
House of Representatives of the principle of
double-effect wherein intentional harm on the life
of either the mother of the child is never justified
to bring about a "good" effect. In a conflict
situation between the life of the child and the life
of the mother, the doctor is morally obliged
always to try to save both lives. However, he can
act in favor of one (not necessarily the mother)
when it is medically impossible to save both,
provided that no direct harm is intended to the
other. If the above principles are observed, the
loss of the child's life or the mother's life is not
intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or
murder. The mother is never pitted against the
child because both their lives are equally
valuable.238
Accordingly, if it is necessary to save the life of a
mother, procedures endangering the life of the
child may be resorted to even if is against the
religious sentiments of the medical practitioner.
As quoted above, whatever burden imposed upon
a medical practitioner in this case would have
been more than justified considering the life he
would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section
15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a
reasonable exercise of police power by the
government. A cursory reading of the assailed
provision bares that the religious freedom of the
petitioners is not at all violated. All the law
requires is for would-be spouses to attend a
seminar on parenthood, family planning
breastfeeding and infant nutrition. It does not
even mandate the type of family planning
methods to be included in the seminar, whether
they be natural or artificial. As correctly noted by
the OSG, those who receive any information
during their attendance in the required seminars
are not compelled to accept the information given
to them, are completely free to reject the
information they find unacceptable, and retain
the freedom to decide on matters of family life
without the intervention of the State.

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In a conflict situation between the life of the


mother and the life of a child, the doctor is
morally obliged always to try to save both lives.
If, however, it is impossible, the resulting death to
one should not be deliberate. Atty. Noche
explained:

4-The Family and the Right to Privacy


Petitioner CFC assails the RH Law because
Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into
marital privacy and autonomy. It argues that it
cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total
development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions
strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is
devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively
promote its total development.
Section 2. Marriage, as an inviolable social
institution, is the foundation of the family and
shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in
accordance with their religious convictions and
the demands of responsible parenthood;
The right of children to assistance, including
proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty,
exploitation and other conditions prejudicial to
their development;
The right of the family to a family living wage and
income; and
The right of families or family assoc1at1ons to
participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden
desire to control population growth, contains
provisions which tend to wreck the family as a
solid social institution. It bars the husband and/or
the father from participating in the decision
making process regarding their common future
progeny. It likewise deprives the parents of their
authority over their minor daughter simply
because she is already a parent or had suffered a
miscarriage.

The following acts are prohibited:


(a) Any health care service provider, whether
public or private, who shall: ...
(2) refuse to perform legal and medically-safe
reproductive health procedures on any person of
legal age on the ground of lack of consent or
authorization of the following persons in the
following instances:
(i) Spousal consent in case of married persons:
provided, That in case of disagreement, the
decision of the one undergoing the procedures
shall prevail. [Emphasis supplied]
The above provision refers to reproductive health
procedures like tubal litigation and vasectomy
which, by their very nature, should require
mutual consent and decision between the
husband and the wife as they affect issues
intimately related to the founding of a family.
Section 3, Art. XV of the Constitution espouses
that the State shall defend the "right of the
spouses to found a family." One person cannot
found a family. The right, therefore, is shared by
both spouses. In the same Section 3, their right
"to participate in the planning and
implementation of policies and programs that
affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon
this mutual decision-making. By giving absolute
authority to the spouse who would undergo a
procedure, and barring the other spouse from
participating in the decision would drive a wedge
between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and
the family, all for the sake of reducing the
population. This would be a marked departure
from the policy of the State to protect marriage
as an inviolable social institution.241
Decision-making involving a reproductive health
procedure is a private matter which belongs to
the couple, not just one of them. Any decision
they would reach would affect their future as a
family because the size of the family or the
number of their children significantly matters.
The decision whether or not to undergo the
procedure belongs exclusively to, and shared by,
both spouses as one cohesive unit as they chart
their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the
State, which has not shown any compelling

59

Section 23(a) (2) (i) of the RH Law states:

The Family and Spousal Consent

interest, the State should see to it that they chart


their destiny together as one family.
As highlighted by Justice Leonardo-De Castro,
Section 19( c) of R.A. No. 9710, otherwise known
as the "Magna Carta for Women," provides that
women shall have equal rights in all matters
relating to marriage and family relations,
including the joint decision on the number and
spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states,
is a shared responsibility between parents.
Section 23(a)(2)(i) of the RH Law should not be
allowed to betray the constitutional mandate to
protect and strengthen the family by giving to
only one spouse the absolute authority to decide
whether to undergo reproductive health
procedure.242
The right to chart their own destiny together falls
within the protected zone of marital privacy and
such state intervention would encroach into the
zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v.
Mutuc,243 where the Court, speaking through Chief
Justice Fernando, held that "the right to privacy
as such is accorded recognition independently of
its identification with liberty; in itself, it is fully
deserving of constitutional protection."244 Marje
adopted the ruling of the US Supreme Court in
Griswold v. Connecticut,245 where Justice William
O. Douglas wrote:
We deal with a right of privacy older than the Bill
of Rights -older than our political parties, older
than our school system. Marriage is a coming
together for better or for worse, hopefully
enduring, and intimate to the degree of being
sacred. It is an association that promotes a way
of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association for as
noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut
statute which made the use of contraceptives a
criminal offense on the ground of its amounting
to an unconstitutional invasion of the right to
privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed
by couples. Justice Douglas in Grisworld wrote
that "specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those
guarantees that help give them life and
substance. Various guarantees create zones of
privacy."246

The Family and Parental Consent


Equally deplorable is the debarment of parental
consent in cases where the minor, who will be
undergoing a procedure, is already a parent or
has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access
to family planning services, whether natural or
artificial: Provided, That minors will not be
allowed access to modern methods of family
planning without written consent from their
parents or guardian/s except when the minor is
already a parent or has had a miscarriage.
There can be no other interpretation of this
provision except that when a minor is already a
parent or has had a miscarriage, the parents are
excluded from the decision making process of the
minor with regard to family planning. Even if she
is not yet emancipated, the parental authority is
already cut off just because there is a need to
tame population growth.
It is precisely in such situations when a minor
parent needs the comfort, care, advice, and
guidance of her own parents. The State cannot
replace her natural mother and father when it
comes to providing her needs and comfort. To say
that their consent is no longer relevant is clearly
anti-family. It does not promote unity in the
family. It is an affront to the constitutional
mandate to protect and strengthen the family as
an inviolable social institution.
More alarmingly, it disregards and disobeys the
constitutional mandate that "the natural and
primary right and duty of parents in the rearing of
the youth for civic efficiency and the
development of moral character shall receive the
support of the Government."247 In this regard,
Commissioner Bernas wrote:
The 1987 provision has added the adjective
"primary" to modify the right of parents. It
imports the assertion that the right of parents is
superior to that of the State.248 [Emphases
supplied]
To insist on a rule that interferes with the right of
parents to exercise parental control over their
minor-child or the right of the spouses to mutually

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At any rate, in case of conflict between the


couple, the courts will decide.

decide on matters which very well affect the very


purpose of marriage, that is, the establishment of
conjugal and family life, would result in the
violation of one's privacy with respect to his
family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining
close family ties and violative of the recognition
that the State affords couples entering into the
special contract of marriage to as one unit in
forming the foundation of the family and society.
The State cannot, without a compelling state
interest, take over the role of parents in the care
and custody of a minor child, whether or not the
latter is already a parent or has had a
miscarriage. Only a compelling state interest can
justify a state substitution of their parental
authority.
First Exception: Access to Information
Whether with respect to the minor referred to
under the exception provided in the second
paragraph of Section 7 or with respect to the
consenting spouse under Section 23(a)(2)(i), a
distinction must be made. There must be a
differentiation between access to information
about family planning services, on one hand, and
access to the reproductive health procedures and
modern family planning methods themselves, on
the other. Insofar as access to information is
concerned, the Court finds no constitutional
objection to the acquisition of information by the
minor referred to under the exception in the
second paragraph of Section 7 that would enable
her to take proper care of her own body and that
of her unborn child. After all, Section 12, Article II
of the Constitution mandates the State to protect
both the life of the mother as that of the unborn
child. Considering that information to enable a
person to make informed decisions is essential in
the protection and maintenance of ones' health,
access to such information with respect to
reproductive health must be allowed. In this
situation, the fear that parents might be deprived
of their parental control is unfounded because
they are not prohibited to exercise parental
guidance and control over their minor child and
assist her in deciding whether to accept or reject
the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an
exception must be made in life-threatening cases
that require the performance of emergency
procedures. In such cases, the life of the minor
who has already suffered a miscarriage and that
of the spouse should not be put at grave risk

In this connection, the second sentence of


Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental
consent to "only in elective surgical procedures,"
it denies the parents their right of parental
authority in cases where what is involved are
"non-surgical procedures." Save for the two
exceptions discussed above, and in the case of an
abused child as provided in the first sentence of
Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental
authority. To deny them of this right would be an
affront to the constitutional mandate to protect
and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in
relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate
Reproductive Health Education under threat of
fine and/or imprisonment violates the principle of
academic freedom . According to the petitioners,
these provisions effectively force educational
institutions to teach reproductive health
education even if they believe that the same is
not suitable to be taught to their
students.250 Citing various studies conducted in
the United States and statistical data gathered in
the country, the petitioners aver that the
prevalence of contraceptives has led to an
increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion
and euthanasia; the "feminization of poverty";
the aging of society; and promotion of
promiscuity among the youth.251
At this point, suffice it to state that any attack on
the validity of Section 14 of the RH Law is
premature because the Department of Education,
Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive
health education. One can only speculate on the
content, manner and medium of instruction that
will be used to educate the adolescents and
whether they will contradict the religious beliefs
of the petitioners and validate their
apprehensions. Thus, considering the premature
nature of this particular issue, the Court declines
to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987
Constitution provides that the natural and

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simply for lack of consent. It should be


emphasized that no person should be denied the
appropriate medical care urgently needed to
preserve the primordial right, that is, the right to
life.

primary right and duty of parents in the rearing of


the youth for civic efficiency and development of
moral character shall receive the support of the
Government. Like the 1973 Constitution and the
1935 Constitution, the 1987 Constitution affirms
the State recognition of the invaluable role of
parents in preparing the youth to become
productive members of society. Notably, it places
more importance on the role of parents in the
development of their children by recognizing that
said role shall be "primary," that is, that the right
of parents in upbringing the youth is superior to
that of the State.252
It is also the inherent right of the State to act as
parens patriae to aid parents in the moral
development of the youth. Indeed, the
Constitution makes mention of the importance of
developing the youth and their important role in
nation building.253 Considering that Section 14
provides not only for the age-appropriatereproductive health education, but also for values
formation; the development of knowledge and
skills in self-protection against discrimination;
sexual abuse and violence against women and
children and other forms of gender based
violence and teen pregnancy; physical, social and
emotional changes in adolescents; women's
rights and children's rights; responsible teenage
behavior; gender and development; and
responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH
Law itself provides for the teaching of responsible
teenage behavior, gender sensitivity and physical
and emotional changes among adolescents - the
Court finds that the legal mandate provided
under the assailed provision supplements, rather
than supplants, the rights and duties of the
parents in the moral development of their
children.
Furthermore, as Section 14 also mandates that
the mandatory reproductive health education
program shall be developed in conjunction with
parent-teacher-community associations, school
officials and other interest groups, it could very
well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a
condition, it becomes apparent that the
petitioners' contention that Section 14 violates
Article XV, Section 3(1) of the Constitution is
without merit.254
While the Court notes the possibility that
educators might raise their objection to their
participation in the reproductive health education
program provided under Section 14 of the RH Law
on the ground that the same violates their
religious beliefs, the Court reserves its judgment
should an actual case be filed before it.

The petitioners also point out that Section 7 of


the assailed legislation exempts hospitals
operated by religious groups from rendering
reproductive health service and modern family
planning methods. It is unclear, however, if these
institutions are also exempt from giving
reproductive health information under Section
23(a)(l), or from rendering reproductive health
procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the
withholding, restricting and providing of incorrect
information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of
vagueness when it lacks comprehensible
standards that men of common intelligence must
necessarily guess its meaning and differ as to its
application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure
to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it
leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an
arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the
words used in a statute are vague, words must
not only be taken in accordance with their plain
meaning alone, but also in relation to other parts
of the statute. It is a rule that every part of the
statute must be interpreted with reference to the
context, that is, every part of it must be
construed together with the other parts and kept
subservient to the general intent of the whole
enactment.256
As correctly noted by the OSG, in determining the
definition of "private health care service
provider," reference must be made to Section
4(n) of the RH Law which defines a "public health
service provider," viz:

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The petitioners contend that the RH Law suffers


from vagueness and, thus violates the due
process clause of the Constitution. According to
them, Section 23 (a)(l) mentions a "private health
service provider" among those who may be held
punishable but does not define who is a "private
health care service provider." They argue that
confusion further results since Section 7 only
makes reference to a "private health care
institution."

6 - Due Process

(n) Public health care service provider refers to:


(1) public health care institution, which is duly
licensed and accredited and devoted primarily to
the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or
in need of obstetrical or other medical and
nursing care; (2) public health care professional,
who is a doctor of medicine, a nurse or a
midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay
health worker who has undergone training
programs under any accredited government and
NGO and who voluntarily renders primarily health
care services in the community after having been
accredited to function as such by the local health
board in accordance with the guidelines
promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care
institution" in Section 7 of the law, instead of
"private health care service provider," should not
be a cause of confusion for the obvious reason
that they are used synonymously.
The Court need not belabor the issue of whether
the right to be exempt from being obligated to
render reproductive health service and modem
family planning methods, includes exemption
from being obligated to give reproductive health
information and to render reproductive health
procedures. Clearly, subject to the qualifications
and exemptions earlier discussed, the right to be
exempt from being obligated to render
reproductive health service and modem family
planning methods, necessarily includes
exemption from being obligated to give
reproductive health information and to render
reproductive health procedures. The terms
"service" and "methods" are broad enough to
include the providing of information and the
rendering of medical procedures.
The same can be said with respect to the
contention that the RH Law punishes health care
service providers who intentionally withhold,
restrict and provide incorrect information
regarding reproductive health programs and
services. For ready reference, the assailed
provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are
prohibited:
(a) Any health care service provider, whether
public or private, who shall:

From its plain meaning, the word "incorrect" here


denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing
to agree with the requirements of duty, morality
or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly"
means with awareness or deliberateness that is
intentional.258 Used together in relation to Section
23(a)(l), they connote a sense of malice and ill
motive to mislead or misrepresent the public as
to the nature and effect of programs and services
on reproductive health. Public health and safety
demand that health care service providers give
their honest and correct medical information in
accordance with what is acceptable in medical
practice. While health care service providers are
not barred from expressing their own personal
opinions regarding the programs and services on
reproductive health, their right must be tempered
with the need to provide public health and safety.
The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law
violates the equal protection clause under the
Constitution as it discriminates against the poor
because it makes them the primary target of the
government program that promotes
contraceptive use . They argue that, rather than
promoting reproductive health among the poor,
the RH Law introduces contraceptives that would
effectively reduce the number of the poor. Their
bases are the various provisions in the RH Law
dealing with the poor, especially those mentioned
in the guiding principles259 and definition of
terms260 of the law.

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(1) Knowingly withhold information or restrict the


dissemination thereof, and/ or intentionally
provide incorrect information regarding programs
and services on reproductive health including the
right to informed choice and access to a full
range of legal, medically-safe, non-abortifacient
and effective family planning methods;

laws is embraced in the concept of due process,


as every unfair discrimination offends the
requirements of justice and fair play. It has been
embodied in a separate clause, however, to
provide for a more specific guaranty against any
form of undue favoritism or hostility from the
government. Arbitrariness in general may be
challenged on the basis of the due process
clause. But if the particular act assailed partakes
of an unwarranted partiality or prejudice, the
sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal
protection simply requires that all persons or
things similarly situated should be treated alike,
both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a
similar manner." "The purpose of the equal
protection clause is to secure every person within
a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by
the express terms of a statue or by its improper
execution through the state's duly constituted
authorities." "In other words, the concept of equal
justice under the law requires the state to govern
impartially, and it may not draw distinctions
between individuals solely on differences that are
irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official
state actions, not just those of the legislature. Its
inhibitions cover all the departments of the
government including the political and executive
departments, and extend to all actions of a state
denying equal protection of the laws, through
whatever agency or whatever guise is taken.

In Biraogo v. Philippine Truth Commission, 261 the


Court had the occasion to expound on the
concept of equal protection. Thus:

It, however, does not require the universal


application of the laws to all persons or things
without distinction. What it simply requires is
equality among equals as determined according
to a valid classification. Indeed, the equal
protection clause permits classification. Such
classification, however, to be valid must pass the
test of reasonableness. The test has four
requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all
members of the same class. "Superficial
differences do not make for a valid classification."

One of the basic principles on which this


government was founded is that of the equality of
right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the

For a classification to meet the requirements of


constitutionality, it must include or embrace all
persons who naturally belong to the class. "The
classification will be regarded as invalid if all the

They add that the exclusion of private


educational institutions from the mandatory
reproductive health education program imposed
by the RH Law renders it unconstitutional.

The classification must not be based on existing


circumstances only, or so constituted as to
preclude addition to the number included in the
class. It must be of such a nature as to embrace
all those who may thereafter be in similar
circumstances and conditions. It must not leave
out or "underinclude" those that should otherwise
fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in
the government's reproductive health care
program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the
distinct necessity to address the needs of the
underprivileged by providing that they be given
priority in addressing the health development of
the people. Thus:
Section 11. The State shall adopt an integrated
and comprehensive approach to health
development which shall endeavor to make
essential goods, health and other social services
available to all the people at affordable cost.
There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide
free medical care to paupers.
It should be noted that Section 7 of the RH Law
prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have
children. There is, therefore, no merit to the
contention that the RH Law only seeks to target
the poor to reduce their number. While the RH
Law admits the use of contraceptives, it does not,
as elucidated above, sanction abortion. As
Section 3(1) explains, the "promotion and/or
stabilization of the population growth rate is
incidental to the advancement of reproductive
health."
Moreover, the RH Law does not prescribe the
number of children a couple may have and does

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members of the class are not similarly treated,


both as to rights conferred and obligations
imposed. It is not necessary that the classification
be made with absolute symmetry, in the sense
that the members of the class should possess the
same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is
achieved, all those covered by the classification
are to be treated equally. The mere fact that an
individual belonging to a class differs from the
other members, as long as that class is
substantially distinguishable from all others, does
not justify the non-application of the law to him."

not impose conditions upon couples who intend


to have children. While the petitioners surmise
that the assailed law seeks to charge couples
with the duty to have children only if they would
raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks
to do is to simply provide priority to the poor in
the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private
educational institutions from the mandatory
reproductive health education program under
Section 14, suffice it to state that the mere fact
that the children of those who are less fortunate
attend public educational institutions does not
amount to substantial distinction sufficient to
annul the assailed provision. On the other hand,
substantial distinction rests between public
educational institutions and private educational
institutions, particularly because there is a need
to recognize the academic freedom of private
educational institutions especially with respect to
religious instruction and to consider their
sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is
constitutionally infirm as it violates the
constitutional prohibition against involuntary
servitude. They posit that Section 17 of the
assailed legislation requiring private and nongovernment health care service providers to
render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to
involuntary servitude because it requires medical
practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono
services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery,
as reproductive health care service providers
have the discretion as to the manner and time of
giving pro bono services. Moreover, the OSG
points out that the imposition is within the
powers of the government, the accreditation of
medical practitioners with PhilHealth being a
privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of
medicine is undeniably imbued with public
interest that it is both a power and a duty of the
State to control and regulate it in order to protect
and promote the public welfare. Like the legal
profession, the practice of medicine is not a right

Moreover, as some petitioners put it, the notion


of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means
of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only
encourages private and non- government
reproductive healthcare service providers to
render pro bono service. Other than nonaccreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise.
Private and non-government reproductive
healthcare service providers also enjoy the liberty
to choose which kind of health service they wish
to provide, when, where and how to provide it or
whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to
render pro bono service against their will. While
the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the
Court does not consider the same to be an
unreasonable burden, but rather, a necessary
incentive imposed by Congress in the furtherance
of a perceived legitimate state interest.
Consistent with what the Court had earlier
discussed, however, it should be emphasized that
conscientious objectors are exempt from this
provision as long as their religious beliefs and
convictions do not allow them to render
reproductive health service, pro bona or
otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation
by Congress to the FDA of the power to
determine whether or not a supply or product is
to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the
delegation. The FDA does not only have the
power but also the competency to evaluate,
register and cover health services and methods.
It is the only government entity empowered to
render such services and highly proficient to do
so. It should be understood that health services
and methods fall under the gamut of terms that
are associated with what is ordinarily understood
as "health products."

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but a privileged burdened with conditions as it


directly involves the very lives of the people. A
fortiori, this power includes the power of
Congress263 to prescribe the qualifications for the
practice of professions or trades which affect the
public welfare, the public health, the public
morals, and the public safety; and to regulate or
control such professions or trades, even to the
point of revoking such right altogether.264

In this connection, Section 4 of R.A. No. 3 720, as


amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act,
there is hereby created an office to be called the
Food and Drug Administration (FDA) in the
Department of Health (DOH). Said Administration
shall be under the Office of the Secretary and
shall have the following functions, powers and
duties:
"(a) To administer the effective implementation of
this Act and of the rules and regulations issued
pursuant to the same;
"(b) To assume primary jurisdiction in the
collection of samples of health products;
"(c) To analyze and inspect health products in
connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis
for the preparation of health products standards,
and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with
technical requirements to serve as basis for the
issuance of appropriate authorization and spotcheck for compliance with regulations regarding
operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other
establishments and facilities of health products,
as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable
health products prior to the issuance of
appropriate authorizations to ensure safety,
efficacy, purity, and quality;
"(i) To require all manufacturers, traders,
distributors, importers, exporters, wholesalers,
retailers, consumers, and non-consumer users of
health products to report to the FDA any incident
that reasonably indicates that said product has
caused or contributed to the death, serious illness
or serious injury to a consumer, a patient, or any
person;
"(j) To issue cease and desist orders motu propio
or upon verified complaint for health products,
whether or not registered with the FDA Provided,
That for registered health products, the cease
and desist order is valid for thirty (30) days and
may be extended for sixty ( 60) days only after
due process has been observed;

x x x.
As can be gleaned from the above, the functions,
powers and duties of the FDA are specific to
enable the agency to carry out the mandates of
the law. Being the country's premiere and sole
agency that ensures the safety of food and
medicines available to the public, the FDA was
equipped with the necessary powers and
functions to make it effective. Pursuant to the
principle of necessary implication, the mandate
by Congress to the FDA to ensure public health
and safety by permitting only food and medicines
that are safe includes "service" and "methods."
From the declared policy of the RH Law, it is clear
that Congress intended that the public be given
only those medicines that are proven medically
safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based
medical research standards. The philosophy
behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the
task of the government and the growing inability
of the legislature to cope directly with the many
problems demanding its attention. The growth of
society has ramified its activities and created
peculiar and sophisticated problems that the
legislature cannot be expected reasonably to
comprehend. Specialization even in legislation
has become necessary. To many of the problems
attendant upon present day undertakings, the
legislature may not have the competence, let
alone the interest and the time, to provide the
required direct and efficacious, not to say specific
solutions.
10- Autonomy of Local Governments and the
Autonomous Region
of Muslim Mindanao (ARMM)

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"(k) After due process, to order the ban, recall,


and/or withdrawal of any health product found to
have caused death, serious illness or serious
injury to a consumer or patient, or is found to be
imminently injurious, unsafe, dangerous, or
grossly deceptive, and to require all concerned to
implement the risk management plan which is a
requirement for the issuance of the appropriate
authorization;

As for the autonomy of local governments, the


petitioners claim that the RH Law infringes upon
the powers devolved to local government units
(LGUs) under Section 17 of the Local Government
Code. Said Section 17 vested upon the LGUs the
duties and functions pertaining to the delivery of
basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be
self-reliant and shall continue exercising the
powers and discharging the duties and functions
currently vested upon them. They shall also
discharge the functions and responsibilities of
national agencies and offices devolved to them
pursuant to this Code. Local government units
shall likewise exercise such other powers and
discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of
the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but
are not limited to, x x x.
While the aforementioned provision charges the
LGUs to take on the functions and responsibilities
that have already been devolved upon them from
the national agencies on the aspect of providing
for basic services and facilities in their respective
jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases
involving nationally-funded projects, facilities,
programs and services.268Thus:
(c) Notwithstanding the provisions of subsection
(b) hereof, public works and infrastructure
projects and other facilities, programs and
services funded by the National Government
under the annual General Appropriations Act,
other special laws, pertinent executive orders,
and those wholly or partially funded from foreign
sources, are not covered under this Section,
except in those cases where the local
government unit concerned is duly designated as
the implementing agency for such projects,
facilities, programs and services. [Emphases
supplied]
The essence of this express reservation of power
by the national government is that, unless an
LGU is particularly designated as the
implementing agency, it has no power over a
program for which funding has been provided by
the national government under the annual
general appropriations act, even if the program
involves the delivery of basic services within the

In this case, a reading of the RH Law clearly


shows that whether it pertains to the
establishment of health care facilities,271 the
hiring of skilled health professionals,272 or the
training of barangay health workers,273 it will be
the national government that will provide for the
funding of its implementation. Local autonomy is
not absolute. The national government still has
the say when it comes to national priority
programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor,"
the LG Us are merely encouraged to provide
these services. There is nothing in the wording of
the law which can be construed as making the
availability of these services mandatory for the
LGUs. For said reason, it cannot be said that the
RH Law amounts to an undue encroachment by
the national government upon the autonomy
enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the
autonomy of local governments can be equally
applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of
the RH Law in the autonomous region, refer to
the policy statements for the guidance of the
regional government. These provisions relied
upon by the petitioners simply delineate the
powers that may be exercised by the regional
government, which can, in no manner, be
characterized as an abdication by the State of its
power to enact legislation that would benefit the
general welfare. After all, despite the veritable
autonomy granted the ARMM, the Constitution
and the supporting jurisprudence, as they now
stand, reject the notion of imperium et imperio in
the relationship between the national and the
regional governments.274 Except for the express
and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to
legislate on all subjects which extends to all
matters of general concern or common
interest.275
11 - Natural Law

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jurisdiction of the LGU.269 A complete


relinquishment of central government powers on
the matter of providing basic facilities and
services cannot be implied as the Local
Government Code itself weighs against it.270

With respect to the argument that the RH Law


violates natural law,276 suffice it to say that the
Court does not duly recognize it as a legal basis
for upholding or invalidating a law. Our only
guidepost is the Constitution. While every law
enacted by man emanated from what is
perceived as natural law, the Court is not obliged
to see if a statute, executive issuance or
ordinance is in conformity to it. To begin with, it is
not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the
philosophical school are interested in the law as
an abstraction, rather than in the actual law of
the past or present.277 Unless, a natural right has
been transformed into a written law, it cannot
serve as a basis to strike down a law. In Republic
v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not
duty-bound to examine every law or action and
whether it conforms with both the Constitution
and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of
circumstances involving rights inherent to man
where no law is applicable.279
At any rate, as earlier expounded, the RH Law
does not sanction the taking away of life. It does
not allow abortion in any shape or form. It only
seeks to enhance the population control program
of the government by providing information and
making non-abortifacient contraceptives more
readily available to the public, especially to the
poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality
reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out,
however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of
what the law hopes to achieve. After all, the
Constitutional safeguard to religious freedom is a
recognition that man stands accountable to an
authority higher than the State.
In conformity with the principle of separation of
Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough
room for diversity and pluralism. As such,
everyone should be tolerant and open-minded so

As healthful as the intention of the RH Law may


be, the idea does not escape the Court that what
it seeks to address is the problem of rising
poverty and unemployment in the country. Let it
be said that the cause of these perennial issues is
not the large population but the unequal
distribution of wealth. Even if population growth
is controlled, poverty will remain as long as the
country's wealth remains in the hands of the very
few.
At any rate, population control may not be
beneficial for the country in the long run. The
European and Asian countries, which embarked
on such a program generations ago , are now
burdened with ageing populations. The number of
their young workers is dwindling with adverse
effects on their economy. These young workers
represent a significant human capital which could
have helped them invigorate, innovate and fuel
their economy. These countries are now trying to
reverse their programs, but they are still
struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being
propped up by remittances from our Overseas
Filipino Workers. This is because we have an
ample supply of young able-bodied workers. What
would happen if the country would be weighed
down by an ageing population and the fewer
younger generation would not be able to support
them? This would be the situation when our total
fertility rate would go down below the
replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a
population problem, but the State should not use
coercive measures (like the penal provisions of
the RH Law against conscientious objectors) to
solve it. Nonetheless, the policy of the Court is
non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the
legislature has laid down. Its duty is to say what
the law is as enacted by the lawmaking body.
That is not the same as saying what the law
should be or what is the correct rule in a given
set of circumstances. It is not the province of the
judiciary to look into the wisdom of the law nor to
question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to
remedy every unjust situation that may arise
from the application of a particular law. It is for
the legislature to enact remedial legislation if that

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that peace and harmony may continue to reign as


we exist alongside each other.

would be necessary in the premises. But as


always, with apt judicial caution and cold
neutrality, the Court must carry out the delicate
function of interpreting the law, guided by the
Constitution and existing legislation and mindful
of settled jurisprudence. The Court's function is
therefore limited, and accordingly, must confine
itself to the judicial task of saying what the law is,
as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH
Law is a mere compilation and enhancement of
the prior existing contraceptive and reproductive
health laws, but with coercive measures. Even if
the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population
Act (R.A. No. 6365), the Contraceptive Act (R.A.
No. 4729) and the reproductive health for women
or The Magna Carta of Women (R.A. No. 9710),
sans the coercive provisions of the assailed
legislation. All the same, the principle of "noabortion" and "non-coercion" in the adoption of
any family planning method should be
maintained.
WHEREFORE, the petitions are PARTIALLY
GRANTED. Accordingly, the Court declares R.A.
No. 10354 as NOT UNCONSTITUTIONAL except
with respect to the following provisions which are
declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in
the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty
hospitals and hospitals owned and operated by a
religious group to refer patients, not in an
emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b)
allow minor-parents or minors who have suffered
a miscarriage access to modem methods of
family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding
provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare
service provider who fails and or refuses to
disseminate information regarding programs and
services on reproductive health regardless of his
or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding
provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or lifethreatening case, as defined under Republic Act
No. 8344, to undergo reproductive health
procedures without the consent of the spouse;

5) Section 23(a)(3) and the corresponding


provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer
a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to
another health care service provider within the
same facility or one which is conveniently
accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding provision
in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who
refuses to support reproductive health programs
or shall do any act that hinders the full
implementation of a reproductive health program,
regardless of his or her religious beliefs;

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P

4) Section 23(a)(2)(ii) and the corresponding


provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective
surgical procedures.

7) Section 17 and the corresponding prov1s10n in


the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they
affect the conscientious objector in securing
PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RHIRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as
they are ultra vires and, therefore, null and void
for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on
March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the
provisions of R.A. No. 10354 which have been
herein declared as constitutional.
SO ORDERED.

70

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS


SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf,
Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and dulyappointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office
of the Presidential Adviser on the Peace Process, Respondents.
x--------------------------------------------x
G.R. No. 183752
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT,
City Mayor of Zamboanga, and in his personal capacity as resident of the City of
Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City ofZamboanga, Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process, Respondents.
x--------------------------------------------x
G.R. No. 183893
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,
- versus
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his
capacity as Executive Secretary.
Respondents.
x--------------------------------------------x
G.R. No. 183951
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H.
OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional
District, HON. CESAR G. JALOSJOS, Congressman, 3rdCongressional District, and
Members of the Sangguniang Panlalawigan of the Province of Zamboanga del
Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON,
JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J.
BAGUIO, HON. CEDRIC L. ADRIATICO, HON.FELIXBERTO C. BOLANDO, HON. JOSEPH
BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES
ESPERON, in his capacity as the Presidential Adviser of Peace Process, Respondents.
x--------------------------------------------x
G.R. No. 183962
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, Petitioners,

71

- versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING


PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.
DEANO, Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR, Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in
his capacity as Provincial Governor and a resident of the Province of Sultan
Kudarat, Petitioner-in-Intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and
RICHALEX G. JAGMIS, as citizens and residents of Palawan, Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD)
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
strict adherence to the Constitution, lest its
DECISION
ruling unduly restricts the freedom of action
vested by that same Constitution in the Chief
CARPIO MORALES, J.:
Executive precisely to enable her to pursue
the peace process effectively.
Subject of these consolidated cases is
the extent of the powers of the President
I. FACTUAL
ANTECEDENTS
OF
THE
in pursuing the peace process. While the
PETITIONS
facts surrounding this controversy center on
the armed conflict in Mindanao between the
government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a
bearing on all areas in the country where
On August 5, 2008, the Government of the
there has been a long-standing armed
Republic of the Philippines (GRP) and the
conflict.Yet again, the Court is tasked to
MILF, through the Chairpersons of their
perform a delicate balancing act. It must
respective peace negotiating panels, were
uncompromisingly delineate the bounds
scheduled to sign a Memorandum of
within which the President may lawfully
Agreement on the Ancestral Domain (MOAexercise her discretion, but it must do so in
AD) Aspect of the GRP-MILF Tripoli

2001

in Kuala

72

of

Agreement on Peace
Lumpur, Malaysia.

The MILF is a rebel group which was


established in March 1984 when, under the
leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on
the ground, among others, of what Salamat
perceived to be the manipulation of the
MNLF away from an Islamic basis towards
Marxist-Maoist orientations.[1]
The signing of the MOA-AD between the GRP
and the MILF was not to materialize,
however, for upon motion of petitioners,
specifically those who filed their cases before
the scheduled signing of the MOA-AD, this
Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process
of negotiation and the concluding of several
prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the
Agreement
on
General
Cessation
of
Hostilities. The following year, they signed
the General Framework of Agreement of
Intent on August 27, 1998.
The Solicitor General, who represents
respondents, summarizes the MOA-AD by
stating that the same contained, among
others, the commitment of the parties to
pursue peace negotiations, protect and
respect human rights, negotiate with
sincerity in the resolution and pacific
settlement of the conflict, and refrain from
the use of threat or force to attain undue
advantage while the peace negotiations on
the substantive agenda are on-going.[2]
Early on, however, it was evident that there
was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the
end of 1999 up to early 2000, the MILF
attacked
a
number
of
municipalities
in Central Mindanao and, in March 2000, it
took control of the town hall of Kauswagan,
Lanao
del
Norte.[3] In
response,
then
President Joseph Estrada declared and
carried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo


assumed office, the military offensive against
the MILF was suspended and the government
sought a resumption of the peace talks. The
MILF, according to a leading MILF member,
initially responded with deep reservation, but
when
President
Arroyo
asked
the
Government of Malaysia through Prime
Minister Mahathir Mohammad to help
convince the MILF to return to the
negotiating table, the MILF convened its
Central Committee to seriously discuss the
matter and, eventually, decided to meet with
the GRP.[4]
The parties met in Kuala Lumpur on March
24, 2001, with the talks being facilitated by
the Malaysian government, the parties
signing on the same date the Agreement on
the General Framework for the Resumption
of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its
military actions.[5]
Formal peace talks between the parties were
held in Tripoli, Libya from June 20-22, 2001,
the outcome of which was the GRP-MILF
Tripoli
Agreement
on
Peace
(Tripoli
Agreement 2001) containing the basic
principles and agenda on the following
aspects
of
the
negotiation: Security Aspect, Rehabilitatio
n Aspect,
and Ancestral
Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed that the
same be discussed further by the Parties in
their next meeting.
A second round of peace talks was held
in Cyberjaya, Malaysia on August
5-7,
2001 which ended with the signing of
theImplementing Guidelines on the Security
Aspect of the Tripoli Agreement 2001 leading
to
a
ceasefire
status
between
the
parties.This
was
followed
by
the
Implementing
Guidelines
on
the
Humanitarian
Rehabilitation
and
Development
Aspects
of
the
Tripoli
Agreement 2001, which was signed on May
7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence
between government forces and the MILF
from 2002 to 2003.

In 2005, several exploratory talks were held


between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft
MOA-AD in its final form, which, as
mentioned, was set to be signed last August
5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most
contentious consensus ever embodied in an
instrument the MOA-AD which is assailed
principally by the present petitions bearing
docket numbers 183591, 183752, 183893,
183951 and 183962.
Commonly impleaded as respondents are
the GRP Peace
Panel
on
Ancestral
Domain[7] and the Presidential Adviser on the
Peace Process (PAPP) Hermogenes Esperon,
Jr.
On July 23, 2008, the Province of North
Cotabato[8] and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary
Injunction and Temporary Restraining Order.
[9]
Invoking the right to information on
matters of public concern, petitioners seek to
compel respondents to disclose and furnish
them the complete and official copies of the
MOA-AD including its attachments, and to
prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the
MOA-AD and the holding of a public
consultation
thereon.Supplementarily,
petitioners pray that the MOA-AD be declared
unconstitutional.[10]
This initial petition was followed by another
one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition[11] filed by the City
of Zamboanga,[12] Mayor Celso Lobregat, Rep.
Ma. Isabelle Climaco and Rep. Erico Basilio
Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover

73
P

Meanwhile, then MILF Chairman Salamat


Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then
the
chief
peace
negotiator
of
the
MILF. Murads position as chief peace
negotiator was taken over by Mohagher
Iqbal.[6]

pray that the City of Zamboanga be excluded


from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the
alternative, that the MOA-AD be declared null
and void.
By Resolution of August 4, 2008, the Court
issued
a
Temporary
Restraining
Order commanding and directing public
respondents and their agents to cease and
desist from formally signing the MOA-AD.
[13]
The Court also required the Solicitor
General to submit to the Court and
petitioners the official copy of the final draft
of the MOA-AD,[14] to which she complied.[15]
Meanwhile, the City of Iligan [16] filed a
petition for Injunction and/or Declaratory
Relief, docketed as G.R. No. 183893,
praying that respondents be enjoined from
signing the MOA-AD or, if the same had
already been signed, from implementing the
same, and that the MOA-AD be declared
unconstitutional. Petitioners
herein additionally
implead
Executive
Secretary Eduardo Ermita as respondent.
The Province of Zamboanga
del
Norte,
[17]
Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon,
Rep. Cesar Jalosjos, and the members[18] of
the Sangguniang
Panlalawigan of
Zamboanga del Norte filed on August 15,
2008 a petition for Certiorari, Mandamus and
Prohibition,[19] docketed
as G.R.
No.
183951. They pray, inter alia, that the MOAAD be declared null and void and without
operative effect, and that respondents be
enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda,
Jejomar Binay, and Aquilino Pimentel III filed
a petition for Prohibition,[20] docketed as G.R.
No. 183962, praying for a judgment
prohibiting
and
permanently
enjoining
respondents from formally signing and
executing the MOA-AD and or any other
agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being
unconstitutional
and
illegal. Petitioners
herein additionally implead as respondent
the
MILF
Peace
Negotiating
Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were
granted leave of court to file their

By subsequent Resolutions, the Court


ordered
the
consolidation
of
the
petitions. Respondents filed Comments on
the petitions, while some of petitioners
submitted their respective Replies.
Respondents, by Manifestation and Motion
of August 19, 2008, stated that the Executive
Department shall thoroughly review the
MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus
moved to dismiss the cases. In the
succeeding
exchange
of
pleadings,
respondents motion was met with vigorous
opposition from petitioners.
The cases were heard on oral argument on
August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot
and academic
(i) insofar
as
the mandamus aspect
is
concerned, in view of the disclosure of official
copies of the final draft of the Memorandum
of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving
the Local Government Units is concerned, if
it is considered that consultation has
become fait accompli with the finalization of
the draft;

74

2. Whether the constitutionality and the


legality of the MOA is ripe for adjudication;

petitions-/comments-inintervention.Petitioners-in-Intervention
include Senator Manuel A. Roxas, former
Senate President Franklin Drilon and Atty.
Adel Tamano, the City of Isabela[21] and
Mayor Cherrylyn Santos-Akbar, the Province
of Sultan Kudarat[22] and Gov. Suharto
Mangudadatu, the Municipality of Linamon in
Lanao del Norte,[23] Ruy Elias Lopez of Davao
City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato
City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex
Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the
Muslim Multi-Sectoral Movement for Peace
and Development (MMMPD) filed their
respective Comments-in-Intervention.

3. Whether respondent Government of the


Republic of the Philippines Peace Panel
committed grave abuse of discretion
amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA
vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the peoples
right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its
transactions involving public interest (1987
Constitution, Article II, Sec. 28) including
public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)
[;]
If
it
is
in
the
affirmative,
whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA,
Government
of
the
Republic
the Philippines would be BINDING itself

the
of

a) to create and recognize the Bangsamoro


Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and
existing laws to conform to the MOA;
c) to concede to or recognize the claim of the
Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371
(THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter
VII
(DELINEATION,
RECOGNITION
OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive
Branch has the authority to so bind the
Government
of
the
Republic
of
the Philippines;
6. Whether the inclusion/exclusion of the
Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected

justiciable

75

is

Bangsamoro Homeland
question; and

7. Whether desistance from signing the MOA


derogates any prior valid commitments of
the Government of the Republic of
thePhilippines.[24]
The Court, thereafter, ordered the parties to
submit their respective Memoranda. Most of
the parties submitted their memoranda on
time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration
of the objections raised in the subject five
petitions and six petitions-in-intervention
against the MOA-AD, as well as the two
comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the
GRP and the MILF.
Under the heading Terms of Reference (TOR),
the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but
also two agreements between the GRP and
the MNLF: the 1976 Tripoli Agreement, and
the
Final
Peace
Agreement
on
the
Implementation
of
the
1976
Tripoli
Agreement, signed on September 2, 1996
during the administration of President Fidel
Ramos.
The MOA-AD also identifies as TOR two local
statutes the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)[25] and
the Indigenous Peoples Rights Act (IPRA),
[26]
and several international law instruments
the ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on
the Rights of the Indigenous Peoples, and the
UN Charter, among others.
The MOA-AD includes as a final TOR the
generic
category
of
compact
rights
entrenchment emanating from the regime
of dar-ul-muahada (or
territory under compact) and dar-ul-sulh (or
territory under peace agreement)
that
partakes the nature of a treaty device.

During the height of the Muslim Empire,


early Muslim jurists tended to see the world
through a simple dichotomy: there was
thedar-ul-Islam (the Abode of Islam) and darul-harb (the Abode of War). The first referred
to those lands where Islamic laws held sway,
while the second denoted those lands where
Muslims were persecuted or where Muslim
laws were outlawed or ineffective.[27] This
way of viewing the world, however, became
more complex through the centuries as the
Islamic
world
became
part
of
the
international community of nations.
As Muslim States entered into treaties with
their neighbors, even with distant States and
inter-governmental
organizations,
the
classical division of the world into dar-ulIslam and dar-ul-harb eventually
lost
its
meaning. New terms were drawn up to
describe novel ways of perceiving nonMuslim
territories. For
instance,
areas
like dar-ul-muahada (land
of compact)
and dar-ul-sulh (land oftreaty) referred to
countries which, though under a secular
regime, maintained peaceful and cooperative
relations with Muslim States, having been
bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on
the other hand, referred to countries which,
though not bound by treaty with Muslim
States, maintained freedom of religion for
Muslims.[28]
It thus appears that the compact rights
entrenchment emanating from the regime
of dar-ul-muahada and dar-ul-sulh simply ref
ers to all other agreements between the MILF
and
the
Philippine
government the
Philippines being the land of compact and
peace agreement that partake of the nature
of a treaty device, treaty being broadly
defined as any solemn agreement in writing
that sets out understandings, obligations,
and benefits for both parties which provides
for a framework that elaborates the
principles declared in the [MOA-AD].[29]
The MOA-AD states that the Parties HAVE
AGREED AND ACKNOWLEDGED AS FOLLOWS,
and starts with its main body.
The main body of the MOA-AD is divided
into four strands, namely, Concepts and

and

76

Resources,

Principles, Territory,
Governance.

A. CONCEPTS AND PRINCIPLES


This strand begins with the statement that it
is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify
themselves
and
be
accepted
as
Bangsamoros. It
defines Bangsamoro
people as
the natives
or
original
inhabitants of Mindanao and
its
adjacent
islands including Palawan and the Sulu
archipelago at the time of conquest or
colonization, and their descendantswhether
mixed or of full blood, including their
spouses.[30]
Thus, the concept of Bangsamoro, as defined
in this strand of the MOA-AD, includes not
only Moros as traditionally understood even
by
Muslims,[31] but
all indigenous peoples of Mindanao and
its
adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples
shall be respected. What this freedom of
choice consists in has not been specifically
defined.
The
MOA-AD
proceeds
to
refer
to
the Bangsamoro homeland, the ownership
of which is vested exclusively in the
Bangsamoro
people
by
virtue
of
their prior rights
of
occupation.[32] Both
parties
to
the
MOA-AD
acknowledge
that ancestral domain does notform part of
the public domain.[33]

case of the Maranao, by the Pat a


Pangampong ku Ranaw, a confederation of
independent principalities (pangampong)
each ruled by datus and sultans, none of
whom was supreme over the others. [35]
The MOA-AD goes on to describe the
Bangsamoro people as the First Nation with
defined territory and with a system of
government having entered into treaties of
amity and commerce with foreign nations.
The term First Nation is of Canadian origin
referring to the indigenous peoples of that
territory, particularly those known as
Indians.In Canada, each of these indigenous
peoples is equally entitled to be called First
Nation, hence, all of them are usually
described collectively by the plural First
Nations.[36] To that extent, the MOA-AD, by
identifying
the
Bangsamoro
people
as the First Nation suggesting its exclusive
entitlement to that designation departs from
the Canadian usage of the term.
The MOA-AD then mentions for the first time
the Bangsamoro Juridical Entity (BJE) to
which it grants the authority and jurisdiction
over
the
Ancestral
Domain
and Ancestral Lands of the Bangsamoro.[37]
B. TERRITORY
The territory of the Bangsamoro homeland is
described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial
domains, including the aerial domain and the
atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region. [38]

The Bangsamoro people are acknowledged


as having the right to self-governance, which
right is said to be rooted on ancestral
territoriality exercised originally under the
suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The
sultanates
were
described
as
states
or karajaan/kadatuan resembling
a
body
politic endowed with all the elements of a
nation-state in the modern sense.[34]

More specifically, the core of the BJE is


defined as the present geographic area of
the ARMM thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi,
Basilan,
and Marawi City. Significantly,
this
core
also includes certain municipalities of Lanao
del Norte that voted for inclusion in the
ARMM in the 2001 plebiscite.[39]

The MOA-AD thus grounds the right to selfgovernance of the Bangsamoro people on
the
past
suzerain
authority
of
the
sultanates.As gathered, the territory defined
as the Bangsamoro homeland was ruled by
several sultanates and, specifically in the

Outside of this core, the BJE is to cover other


provinces,
cities,
municipalities
and
barangays, which are grouped into two
categories, Category A and Category B. Each
of these areas is to be subjected to a
plebiscite to be held on different dates, years

The Parties to the MOA-AD stipulate that the


BJE shall have jurisdiction over all natural
resources within its internal waters,defined
as extending fifteen (15) kilometers from the
coastline of the BJE area;[42] that the BJE shall
also have territorial waters, which shall
stretch beyond the BJE internal waters up to
the baselines of the Republic of the
Philippines (RP) south east and south west of
mainland
Mindanao;
and
that within
these territorial waters, the BJE and the
Central Government (used interchangeably
with RP) shall exercise joint jurisdiction,
authority and management over all natural
resources.[43] Notably, the jurisdiction over
the internal waters is not similarly described
as joint.
The
MOA-AD
further
provides
for
the sharing of minerals
on
the territorial waters between the Central
Government and the BJE, in favor of the
latter, through production sharing and
economic cooperation agreement.[44] The
activities which the Parties are allowed to
conduct
on
the territorial waters
are
enumerated,
among
which
are
the
exploration and utilization of natural
resources, regulation of shipping and fishing
activities, and the enforcement of police and
safety measures.[45] There is no similar
provision on the sharing of minerals and
allowed
activities
with
respect
to
the internal waters of the BJE.

77

GRP. The
BJE
may
also
enter
into
environmental cooperation agreements. [46]

apart from each other. Thus, Category A


areas are to be subjected to a plebiscite not
later than twelve (12) months following the
signing of the MOA-AD.[40] Category B areas,
also called Special Intervention Areas, on the
other hand, are to be subjected to a
plebiscite twenty-five (25) years from the
signing of a separate agreement the
Comprehensive Compact.[41]

The external defense of the BJE is to remain


the duty and obligation of the Central
Government. The Central Government is also
bound to take necessary steps to ensure the
BJEs participation in international meetings
and events like those of the ASEAN and the
specialized agencies of the UN. The BJE is to
be entitled to participate in Philippine official
missions and delegations for the negotiation
of border agreements or protocols for
environmental protection and equitable
sharing of incomes and revenues involving
the bodies of water adjacent to or between
the islands forming part of the ancestral
domain.[47]
With regard to the right of exploring for,
producing, and obtaining all potential
sources of energy, petroleum, fossil fuel,
mineral oil and natural gas, the jurisdiction
and control thereon is to be vested in the BJE
as the party having control within its
territorial jurisdiction. This right carries
the proviso that, in times of national
emergency, when public interest so requires,
the Central Government may, for a fixed
period and under reasonable terms as may
be agreed upon by both Parties, assume or
direct the operation of such resources.[48]
The
sharing
between
the
Central
Government and the BJE of total production
pertaining to natural resources is to be 75:25
in favor of the BJE.[49]
The MOA-AD provides that legitimate
grievances of the Bangsamoro people arising
from any unjust dispossession of their
territorial and proprietary rights, customary
land tenures, or their marginalization shall be
acknowledged. Whenever restoration is no
longer possible, reparation is to be in such
form as mutually determined by the Parties.

C. RESOURCES

[50]

The MOA-AD states that the BJE is free to


enter into any economic cooperation and
trade relations with foreign countries and
shall have the option to establish trade
missions
in
those
countries. Such
relationships and understandings, however,
are not to include aggression against the

The BJE may modify or cancel the forest


concessions, timber licenses, contracts or
agreements, mining concessions, Mineral
Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements
(IFMA),
and
other
land
tenure
instrumentsgranted
by
the
Philippine

78
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Government, including those issued by the


present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a
multinational third-party to observe and
monitor
the
implementation
of
theComprehensive
Compact. This
compact is to embody the details for the
effective enforcement and the mechanisms
and modalities for the actual implementation
of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third
party shall not in any way affect the status of
the relationship between the Central
Government and the BJE.[52]
The associative relationship
between
the Central Government and the BJE
The MOA-AD describes the relationship of the
Central
Government
and
the
BJE
as associative,
characterized by
shared
authority and responsibility. And it states
that the structure of governance is to be
based on executive, legislative, judicial, and
administrative institutions with defined
powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions
requiring amendments to the existing legal
framework shall take effect upon signing of
the Comprehensive Compact and upon
effecting the aforesaid amendments, with
due regard to the non-derogation of prior
agreements and within the stipulated
timeframe
to
be
contained
in
the
Comprehensive
Compact. As
will
be
discussed later, much of the present
controversy hangs on the legality of
this provision.
The BJE is granted the power to build,
develop and maintain its own institutions
inclusive of civil service, electoral, financial
and banking, education, legislation, legal,
economic, police and internal security force,
judicial
system
and
correctional
institutions,the details of which shall be
discussed in the negotiation of the
comprehensive compact.
As stated early on, the MOA-AD was set to be
signed on August 5, 2008 by Rodolfo Garcia

and Mohagher Iqbal, Chairpersons of the


Peace Negotiating Panels of the GRP and the
MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the
signatories as the representatives of the
Parties, meaning the GRP and MILF
themselves, and not merely of the
negotiating
panels.[53] In
addition,
the
signature page of the MOA-AD states that it
is WITNESSED BY Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister
of Malaysia, ENDORSED BY Ambassador
Sayed Elmasry, Adviser to Organization of
the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process
in Southern Philippines, and SIGNED IN THE
PRESENCE OF Dr. Albert G. Romulo,
Secretary of Foreign Affairs of RP and Dato
Seri Utama Dr. Rais Bin Yatim, Minister of
Foreign Affairs, Malaysia, all of whom were
scheduled to sign the Agreement last August
5, 2008.
Annexed to the MOA-AD are two documents
containing the respective lists cum maps of
the provinces, municipalities, and barangays
under Categories A and B earlier mentioned
in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to
actual cases or controversies.[54] Courts
decline to issue advisory opinions or to
resolve hypothetical or feigned problems, or
mere academic questions.[55] The limitation
of the power of judicial review to actual
cases and controversies defines the role
assigned to the judiciary in a tripartite
allocation of power, to assure that the courts
will not intrude into areas committed to the
other branches of government.[56]
An actual case or controversy involves a
conflict of legal rights, an assertion of
opposite legal claims, susceptible of judicial
resolution
as
distinguished
from
a
hypothetical or abstract difference or
dispute. There must be a contrariety of legal
rights that can be interpreted and enforced
on
the
basis of
existing law and
jurisprudence.[57] The Court can decide the
constitutionality of an act or treaty only

Related to the requirement of an actual case


or controversy is the requirement of
ripeness. A question is ripe for adjudication
when the act being challenged has had a
direct adverse effect on the individual
challenging it.[59] For a case to be considered
ripe for adjudication, it is a prerequisite that
something had then been accomplished or
performed by either branch before a court
may come into the picture, [60] and the
petitioner must allege the existence of an
immediate or threatened injury to itself as a
result of the challenged action. [61] He must
show that he has sustained or is immediately
in danger of sustaining some direct injury as
a result of the act complained of.[62]
The Solicitor General argues that there is no
justiciable controversy that is ripe for judicial
review in the present petitions, reasoning
that
The unsigned MOA-AD is simply a list of
consensus
points
subject
to
further
negotiations and legislative enactments as
well as constitutional processes aimed at
attaining a final peaceful agreement. Simply
put, the MOA-AD remains to be a proposal
that does not automatically create legally
demandable rights and obligations until the
list of operative acts required have been duly
complied with. x x x
xxxx
In the cases at bar, it is respectfully
submitted that this Honorable Court has no
authority to pass upon issues based on
hypothetical
or
feigned
constitutional
problems or interests with no concrete
bases. Considering
the preliminary character of the MOA-AD,
there are no concrete acts that could
possibly violate petitioners and intervenors
rights since the acts complained of are mere
contemplated steps toward the formulation
of
a
final
peace
agreement. Plainly,
petitioners and intervenors perceived injury,
if at all, is merely imaginary and illusory
apart from being unfounded and based on
mere conjectures. (Underscoring supplied)

79

opposing
judicial

when a proper case between


parties
is
submitted
for
[58]
determination.

The Solicitor General cites[63] the following


provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the
following stipulations:
xxxx
d. Without derogating from the requirements
of prior agreements, the Government
stipulates to conduct and deliver, using all
possible legal measures, within twelve (12)
months following the signing of the MOA-AD,
a
plebiscite
covering
the
areas
as
enumerated in the list and depicted in the
map as Category A attached herein (the
Annex). The Annex constitutes an integral
part of this framework agreement. Toward
this end, the Parties shall endeavor to
complete the negotiations and resolve all
outstanding issues on the Comprehensive
Compact within fifteen (15) months from the
signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and
modalities for the actual implementation of
this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take
such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework
shall come into force upon the signing of a
Comprehensive Compact and upon effecting
the necessary changes to the legal
framework with due regard to nonderogation of prior agreements and within
the stipulated timeframe to be contained in
the
Comprehensive
Compact.
[64]
(Underscoring supplied)
The Solicitor Generals arguments fail to
persuade.
Concrete acts under the MOA-AD are not
necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,[65]this Court
held:

80
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x x x [B]y the mere enactment of the


questioned law or the approval of the
challenged action, the dispute is said to have
ripened into a judicial controversy even
without any other overt act. Indeed, even a
singular violation of the Constitution and/or
the law is enough to awaken judicial duty.

act which the law specifically enjoins as a


duty resulting from an office, trust, or
station, or unlawfully excludes another from
the use or enjoyment of a right or office to
which such other is entitled.[73] Certiorari,
Mandamus and Prohibition are appropriate
remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper,
acts of legislative and executive officials.[74]

xxxx
By the same token, when an act of the
President, who in our constitutional scheme
is a coequal of Congress, is seriously alleged
to have infringed the Constitution and the
laws x x x settling the dispute becomes the
duty and the responsibility of the courts.[66]
In Santa Fe Independent School District v.
Doe,[67] the United States Supreme Court
held
that
the
challenge
to
the
constitutionality of the schools policy
allowing student-led prayers and speeches
before games was ripe for adjudication, even
if no public prayer had yet been led under
the policy, because the policy was being
challenged as unconstitutional on its face.[68]
That the law or act in question is not yet
effective does not negate ripeness. For
example, in New York v. United States,
[69]
decided in 1992, the United States
Supreme Court held that the action by the
State of New York challenging the provisions
of the Low-Level Radioactive Waste Policy Act
was ripe for adjudication even if the
questioned provision was not to take effect
until January 1, 1996, because the parties
agreed that New York had to take immediate
action to avoid the provision's consequences.
[70]

The present petitions pray for Certiorari,


[71]
Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law
when any tribunal, board or officer has
acted, in the case of certiorari, or is
proceeding, in the case of prohibition,
without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack
or excess of jurisdiction.[72] Mandamus is a
remedy granted by law when any tribunal,
corporation,
board,
officer
or
person
unlawfully neglects the performance of an

The authority of the GRP Negotiating Panel is


defined by Executive Order No. 3 (E.O. No.
3), issued on February 28, 2001.[75] The said
executive
order
requires
that
[t]he
government's policy framework for peace,
including the systematic approach and the
administrative structure for carrying out the
comprehensive peace process x x x be
governed by this Executive Order.[76]
The
present
petitions
allege
that
respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without
consulting the local government units or
communities affected, nor informing them of
the proceedings. As will be discussed in
greater detail later, such omission, by itself,
constitutes a departure by respondents from
their mandate under E.O. No. 3.
Furthermore, the petitions allege that the
provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that any
provisions
of
the
MOA-AD
requiring
amendments to the existing legal framework
shall come into force upon the signing of a
Comprehensive Compact and upon effecting
the necessary changes to the legal
framework, implying an amendment of the
Constitution to accommodate the MOAAD. This
stipulation,
in
effect, guaranteed to
the
MILF
the
amendment of the Constitution. Such act
constitutes
another
violation
of
its
authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on
the part of respondent that exceed their
authority, by violating their duties under
E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition,
and Mandamus, and an actual case or
controversy ripe
for
adjudication exists. When an act of a

B. LOCUS STANDI
For a party to have locus standi, one must
allege such a personal stake in the outcome
of the controversy as to assure that concrete
adverseness
which
sharpens
the
presentation of issues upon which the court
so largely depends for illumination of difficult
constitutional questions.[78]
Because constitutional cases are often public
actions in which the relief sought is likely to
affect other persons, a preliminary question
frequently arises as to this interest in the
constitutional question raised.[79]
When suing as a citizen, the person
complaining must allege that he has been or
is about to be denied some right or privilege
to which he is lawfully entitled or that he is
about to be subjected to some burdens or
penalties by reason of the statute or act
complained of.[80] 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.[81]
For a taxpayer, one is allowed to sue where
there is an assertion that public funds are
illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public
funds through the enforcement of an invalid
or unconstitutional law.[82] The Court retains
discretion whether or not to allow a
taxpayers suit.[83]
In the case of a legislator or member of
Congress, an act of the Executive that injures
the institution of Congress causes a
derivative but nonetheless substantial injury
that can be questioned by legislators. A
member of the House of Representatives has
standing
to
maintain
inviolate
the
prerogatives, powers and privileges vested
by the Constitution in his office.[84]
An organization may be granted standing to
assert the rights of its members, [85] but the
mere invocation by the Integrated Bar of

81
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branch of government 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.[77]

the Philippines or any member of the legal


profession of the duty to preserve the rule of
law does not suffice to clothe it with
standing.[86]
As regards a local government unit (LGU), it
can seek relief in order to protect or
vindicate an interest of its own, and of the
other LGUs.[87]
Intervenors, meanwhile, may be given legal
standing upon showing of facts that satisfy
the requirements of the law authorizing
intervention,[88] such as a legal interest in the
matter in litigation, or in the success of
either of the parties.
In any case, the Court has discretion to relax
the
procedural
technicality
on locus
standi, given the liberal attitude it has
exercised, highlighted in the case of David v.
Macapagal-Arroyo,[89] where technicalities of
procedure
were
brushed
aside,
the
constitutional
issues
raised
being
of
paramount
public
interest
or
of
transcendental importance deserving the
attention of the Court in view of their
seriousness,
novelty
and
weight
as
precedents.[90] The Courts forbearing stance
on locus
standi on
issues
involving
constitutional issues has for its purpose the
protection of fundamental rights.
In not a few cases, the Court, in keeping with
its duty under the Constitution to determine
whether the other branches of government
have kept themselves within the limits of the
Constitution and the laws and have not
abused the discretion given them, has
brushed aside technical rules of procedure. [91]
In the petitions at bar, petitioners Province
of
North
Cotabato (G.R.
No.
183591) Province of Zamboanga del
Norte (G.R.
No.
183951), City
of
Iligan (G.R. No. 183893) and City of
Zamboanga (G.R.
No.
183752)
and
petitioners-in-intervention Province
of
Sultan
Kudarat,
City
of
Isabela and Municipality
of
Linamon have locus standi in view of the
direct and substantial injury that they, as
LGUs, would suffer as their territories,
whether in whole or in part, are to be
included in the intended domain of the

In G.R. No. 183962, petitioners Ernesto


Maceda,
Jejomar
Binay and Aquilino
Pimentel III would have no standing as
citizens and taxpayers for their failure to
specify that they would be denied some right
or privilege or there would be wastage of
public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City,
and a resident of Cagayan de Oro,
respectively,
is
of
no
consequence. Considering their invocation of
the transcendental importance of the issues
at hand, however, the Court grants them
standing.
Intervenors Franklin
Drilon and Adel
Tamano, in alleging their standing as
taxpayers, assert that government funds
would be expended for the conduct of an
illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score
alone,
they
can
be
given
legal
standing. Their allegation that the issues
involved in these petitions are of undeniable
transcendental importance clothes them with
added basis for their personality to intervene
in these petitions.
With regard to Senator Manuel Roxas, his
standing is premised on his being a member
of the Senate and a citizen to enforce
compliance by respondents of the publics
constitutional right to be informed of the
MOA-AD, as well as on a genuine legal
interest in the matter in litigation, or in the
success or failure of either of the parties. He
thus possesses the requisite standing as an
intervenor.
With respect to Intervenors Ruy Elias
Lopez, as a former congressman of the
3rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B.
Gomez, et al., as members of the IBP
Palawan
chapter,
citizens
and
taxpayers; Marino
Ridao, as
taxpayer,
resident and member of the Sangguniang
Panlungsod of
Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege

82
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BJE.These petitioners allege that they did not


vote for their inclusion in the ARMM which
would be expanded to form the BJE
territory.Petitioners legal standing is thus
beyond doubt.

any proper legal interest in the present


petitions. Just the same, the Court exercises
its discretion to relax the procedural
technicality
on locus
standi given
the
paramount public interest in the issues at
hand.
Intervening
respondents Muslim
MultiSectoral Movement for Peace and
Development, an advocacy group for
justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim
Legal Assistance Foundation Inc., a nongovernment organization of Muslim lawyers,
allege that they stand to be benefited or
prejudiced, as the case may be, in the
resolution of the petitions concerning the
MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such
legal interest suffices to clothe them with
standing.
B. MOOTNESS
Respondents insist that the present petitions
have been rendered moot with the
satisfaction of all the reliefs prayed for by
petitioners
and
the
subsequent
pronouncement of the Executive Secretary
that [n]o matter what the Supreme Court
ultimately decides[,] the government will not
sign the MOA.[92]
In lending credence to this policy decision,
the Solicitor General points out that the
President
had
already
disbanded
the GRP Peace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court
held that the moot and academic principle
not
being
a
magical
formula
that
automatically dissuades courts in resolving a
case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a
grave violation of the Constitution;[95] (b) the
situation is of exceptional character and
paramount public interest is involved; [96](c)
the constitutional issue raised requires
formulation of controlling principles to guide
the bench, the bar, and the public; [97] and (d)
the case is capable of repetition yet evading
review.[98]
Another exclusionary circumstance that may
be
considered
is
where
there
is

The present petitions fall squarely into these


exceptions to thus thrust them into the
domain of judicial review. The grounds cited
above in David are just as applicable in the
present cases as they were, not only
in David, but also in Province of Batangas v.
Romulo[100] and Manalo v. Calderon[101] where
the Court similarly decided them on the
merits, supervening events that would
ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of
respondents, the non-signing of the MOA-AD
and the eventual dissolution of the GRP
Peace Panel did not moot the present
petitions. It bears emphasis that the signing
of the MOA-AD did not push through due to
the Courts issuance of a Temporary
Restraining Order.
Contrary too to respondents position, the
MOA-AD cannot be considered a mere list of
consensus
points,
especially
given
itsnomenclature,
the need to have
it
signed or initialed by all the parties
concerned on August 5, 2008, and the farreaching Constitutional implications of
these consensus points, foremost of which is
the creation of the BJE.
In fact, as what will, in the main, be
discussed, there is a commitment on the
part of respondents to amend and
effect necessary changes to the existing
legal framework for certain provisions
of
the
MOA-AD
to
take
effect. Consequently, the present petitions
are not confined to the terms and provisions
of
the
MOA-AD,
but
to
other ongoing and future negotiations
and
agreements necessary for its realization. The

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a voluntary cessation of
the
activity
complained of by the defendant or
doer. Thus, once a suit is filed and the doer
voluntarily ceases the challenged conduct, it
does not automatically deprive the tribunal
of power to hear and determine the case and
does not render the case moot especially
when the plaintiff seeks damages or prays
for injunctive relief against the possible
recurrence of the violation.[99]

petitions have not, therefore, been rendered


moot and academic simply by the public
disclosure
of
the
MOA-AD,[102] the
manifestation that it will not be signed as
well as the disbanding of the GRP Panel not
withstanding.
Petitions are imbued with paramount
public interest
There is no gainsaying that the petitions are
imbued with paramount public interest,
involving a significant part of the countrys
territory and the wide-ranging political
modifications
of
affected
LGUs. The
assertion that the MOA-AD is subject to
further legal enactments including
possible Constitutional amendments
more than ever provides impetus for
the
Court
to formulate
controlling
principles to guide the bench, the bar,
the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.
[103]
where the Court did not pontificat[e] on
issues
which
no
longer
legitimately
constitute an actual case or controversy [as
this] will do more harm than good to the
nation as a whole.
The present petitions must be differentiated
from Suplico. Primarily, in Suplico, what was
assailed and eventually cancelled was a
stand-alone
government
procurement
contract for a national broadband network
involving a
one-time
contractual
relation between two partiesthe government
and a private foreign corporation. As the
issues therein involved specific government
procurement policies and standard principles
on
contracts,
the
majority
opinion
in Suplico found nothing exceptional therein,
the factual circumstances being peculiar only
to the transactions and parties involved in
the controversy.
The MOA-AD is part of a series of
agreements
In the present controversy, the MOA-AD is
a significant part of a series of
agreements necessary
to
carry
out
the TripoliAgreement
2001. The
MOA-AD
which dwells on the Ancestral Domain
Aspect of said Tripoli Agreement is the third

Accordingly, even if the Executive Secretary,


in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that no
matter what the Supreme Court ultimately
decides[,] the government will not sign the
MOA[-AD], mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be
renegotiated or another one will be drawn
up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in
another or in any form, which could contain
similar
or
significantly
drastic
provisions.While the Court notes the word of
the Executive Secretary that the government
is committed to securing an agreement that
is both constitutional and equitable because
that is the only way that long-lasting peace
can be assured, it is minded to render
a decision on the merits in the present
petitions
to formulate
controlling
principles to guide the bench, the bar,
the public and, most especially, the
government in negotiating with the
MILF regarding Ancestral Domain.
Respondents invite the Courts attention to
the separate opinion of then Chief Justice
Artemio
Panganiban
in Sanlakas
v.
Reyes[104]in which he stated that the doctrine
of capable of repetition yet evading review
can override mootness, provided the party
raising it in a proper case has been and/or
continue to be prejudiced or damaged as a
direct result of their issuance. They contend
that the Court must have jurisdiction over
the subject matter for the doctrine to be
invoked.
The present petitions all contain prayers for
Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court
will treat it as one for Prohibition as it has far
reaching implications and raises questions

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such component to be undertaken following


the implementation of the Security Aspect in
August
2001
and
the Humanitarian,
Rehabilitation and Development Aspect in
May 2002.

that need to be resolved.[105] At all events,


the Court has jurisdiction over most if not the
rest of the petitions.
Indeed, the present petitions afford a proper
venue for the Court to again apply the
doctrine immediately referred to as what it
had done in a number of landmark cases.
[106]
There is a reasonable expectation that
petitioners, particularly the Provinces of
North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga,
Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same
problem in the future as respondents actions
are capable of repetition, in another or any
form.
It is with respect to the prayers for
Mandamus that the petitions have become
moot, respondents having, by Compliance
of August 7, 2008, provided this Court and
petitioners with official copies of the final
draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have
procured for themselves, copies of the MOAAD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-inIntervention,
there
are
basically
two
SUBSTANTIVE issues to be resolved, one
relating to the manner in which the MOA-AD
was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and
statutory provisions on public consultation
and the right to information when they
negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the
Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right
to information on matters of public
concern, as provided in Section 7, Article III
on the Bill of Rights:
Sec. 7. The right of the people to information
on matters of public concern shall be
recognized. Access to official records, and to
documents, and papers pertaining to official

As early as 1948, in Subido v. Ozaeta,[108] the


Court has recognized the statutory right to
examine and inspect public records, a right
which was eventually accorded constitutional
status.
The right of access to public documents, as
enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized
as a self-executory constitutional right.[109]
In the 1976 case of Baldoza v. Hon. Judge
Dimaano,[110] the Court ruled that access to
public records is predicated on the right of
the people to acquire information on matters
of public concern since, undoubtedly, in a
democracy, the pubic has a legitimate
interest in matters of social and political
significance.
x x x The incorporation of this right in the
Constitution is a recognition of the
fundamental role of free exchange of
information in a democracy. There can be no
realistic perception by the public of the
nations
problems,
nor
a
meaningful
democratic decision-making if they are
denied access to information of general
interest. Information is needed to enable the
members of society to cope with the
exigencies of the times. As has been aptly
observed: Maintaining the flow of such
information depends on protection for both
its acquisition and its dissemination since, if
either process is interrupted, the flow
inevitably ceases. x x x[111]
In the same way that free discussion enables
members of society to cope with the
exigencies of their time, access to
information of general interest aids the
people in democratic decision-making by
giving them a better perspective of the vital
issues confronting the nation[112] so that they
may be able to criticize and participate in the
affairs of the government in a responsible,
reasonable and effective manner. It is by

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acts, transactions, or decisions, as well as to


government research data used as basis for
policy development, shall be afforded the
citizen, subject to such limitations as may be
provided by law.[107]

ensuring an unfettered and uninhibited


exchange of ideas among a well-informed
public that a government remains responsive
to the changes desired by the people. [113]
The MOA-AD
concern

is

matter

of

public

That the subject of the information sought in


the present cases is a matter of public
concern[114] faces no serious challenge.In
fact, respondents admit that the MOA-AD is
indeed of public concern.[115] In previous
cases, the Court found that the regularity of
real estate transactions entered in the
Register of Deeds,[116] the need for adequate
notice to the public of the various laws,
[117]
the civil service eligibility of a public
employee,[118] the proper management of
GSIS funds allegedly used to grant loans to
public
officials,[119] the recovery
of
the
Marcoses alleged ill-gotten wealth,[120] and
the identity of party-list nominees,[121] among
others,
are
matters
of
public
concern. Undoubtedly, the
MOA-AD
subject of the present cases is of public
concern,
involving
as
it
does
the sovereignty and territorial integrity
of the State, which directly affects the lives
of the public at large.
Matters of public concern covered by the
right to information include steps and
negotiations leading to the consummation of
the contract. In not distinguishing as to the
executory nature or commercial character of
agreements, the Court has categorically
ruled:
x
x
x
[T]he
right
to
information contemplates inclusion of
negotiations
leading
to
the
consummation
of
the
transaction. Certainly,
a
consummated
contract is not a requirement for the exercise
of the right to information. Otherwise, the
people can never exercise the right if no
contract is consummated, and if one is
consummated, it may be too late for the
public to expose its defects.
Requiring a consummated contract will keep
the public in the dark until the contract,
which may be grossly disadvantageous to
the government or even illegal, becomes fait
accompli. This negates the State policy of full

86

or will not be in force and effect until after


Congress shall have provided it.

transparency on matters of public concern, a


situation
which
the framers of
the
Constitution could not have intended. Such a
requirement will prevent the citizenry from
participating in the public discussion of
any proposed contract,
effectively
truncating a basic right enshrined in the Bill
of Rights. We can allow neither an
emasculation of a constitutional right, nor a
retreat by the State of its avowed policy of
full disclosure of all its transactions involving
public interest.[122] (Emphasis and italics in
the original)

MR. OPLE. I expect it to influence the


of public ethics immediately but, of
the implementing law will have
enacted by Congress, Mr. Presiding
[128]

climate
course,
to be
Officer.

The following discourse, after Commissioner


Hilario Davide, Jr., sought clarification on the
issue, is enlightening.

Intended as a splendid symmetry[123] to the


right to information under the Bill of Rights is
the policy
of
public disclosure under
Section 28, Article II of the Constitution
reading:

MR. DAVIDE. I would like to get some


clarifications on this. Mr. Presiding Officer,
did I get the Gentleman correctly as having
said that this is not a self-executing
provision? It would require a legislation by
Congress to implement?

Sec. 28. Subject to reasonable conditions


prescribed by law, the State adopts and
implements a policy of full public disclosure
of all its transactions involving public
interest.[124]

MR. OPLE. Yes. Originally, it was going to be


self-executing, but I accepted an amendment
from Commissioner Regalado, so that the
safeguards on national interest are modified
by the clause as may be provided by law

The policy of full public disclosure enunciated


in
above-quoted
Section
28 complements the right
of
access
to
information
on
matters
of
public
concern found in the Bill of Rights. The right
to information guarantees the right of the
people to demand information, while Section
28 recognizes the duty of officialdom to give
information even if nobody demands.[125]

MR. DAVIDE. But as worded, does it not


mean that this will immediately take
effect and Congress may provide for
reasonable safeguards on the sole ground
national interest?

The policy of public disclosure establishes a


concrete ethical principle for the conduct of
public affairs in a genuinely open democracy,
with the peoples right to know as the
centerpiece. It is a mandate of the State to
be accountable by following such policy.
[126]
These provisions are vital to the exercise
of the freedom of expression and essential to
hold public officials at all times accountable
to the people.[127]
Whether Section 28 is self-executory, the
records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not selfexecutory, this policy will not be enunciated

MR. OPLE. Yes. I think so, Mr. Presiding


Officer, I said earlier that it should
immediately influence the climate of the
conduct of public affairs but, of course,
Congress here may no longer pass a law
revoking it, or if this is approved, revoking
this principle, which is inconsistent with this
policy.[129] (Emphasis supplied)
Indubitably, the effectivity of the policy
of public disclosure need not await the
passing of a statute. As Congress cannot
revoke this principle, it is merely directed to
provide for reasonable safeguards. The
complete and effective exercise of the right
to
information
necessitates
that
its
complementary
provision
on
public
disclosure derive the same self-executory
nature. Since both provisions go hand-inhand, it is absurd to say that the
broader[130] right to information on matters of

An essential element of these freedoms is to


keep open a continuing dialogue or process
of communication between the government
and the people. It is in the interest of the
State that the channels for free political
discussion be maintained to the end that the
government may perceive and be responsive
to
the
peoples
will.[131] Envisioned
to
be corollary to the twin rights to information
and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr.
Presiding Officer, will the people be able
to participate? Will the government
provide feedback mechanisms so that
the people can participate and can
react where the existing media facilities
are not able to provide full feedback
mechanisms
to
the
government? I
suppose this will be part of the
government implementing operational
mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these
courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer,
may I just make one last sentence?
I think when we talk about the feedback
network, we are not talking about
public officials but also network of
private business o[r] community-based
organizations that will be reacting. As a
matter of fact, we will put more credence or
credibility on the private network of
volunteers and voluntary community-based
organizations. So I do not think we are afraid
that there will be another OMA in the
making.[132] (Emphasis supplied)

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public concern is already enforceable while


the correlative duty of the State to disclose
its transactions involving public interest is
not enforceable until there is an enabling
law. Respondents cannot thus point to the
absence of an implementing legislation as an
excuse in not effecting such policy.

The imperative of a public consultation, as a


species of the right to information, is evident
in the marching orders to respondents.The
mechanics for the duty to disclose
information
and
to
conduct
public
consultation regarding the peace agenda and
process is manifestly provided by E.O. No. 3.
[133]
The preambulatory clause of E.O. No. 3
declares that there is a need to further
enhance the contribution of civil society to
the comprehensive peace process by
institutionalizing the peoples participation.
One of the three underlying principles of the
comprehensive peace process is that it
should be community-based, reflecting the
sentiments, values and principles important
to all Filipinos and shall be defined not by the
government alone, nor by the different
contending groups only, but by all Filipinos
as
one
community.[134] Included
as
a
component of the comprehensive peace
process
is
consensus-building
and
empowerment
for
peace,
which
includes continuing consultations on both
national and local levels to build consensus
for a peace agenda and process, and the
mobilization and facilitation of peoples
participation in the peace process.[135]
Clearly, E.O. No. 3 contemplates not just
the conduct of a plebiscite to effectuate
continuing consultations, contrary to
respondents position that plebiscite is
more than sufficient consultation.[136]
Further, E.O. No. 3 enumerates the functions
and responsibilities of the PAPP, one of which
is to [c]onduct regular dialogues with the
National Peace Forum (NPF) and other peace
partners to seek relevant information,
comments, recommendations as well as to
render appropriate and timely reports on the
progress of the comprehensive peace
process.[137] E.O. No. 3 mandates the
establishment of the NPF to be the principal
forum for the PAPP to consult with and seek
advi[c]e from the peace advocates, peace
partners and concerned sectors of society on
both national and local levels, on the
implementation of the comprehensive peace
process, as well as for government[-]civil
society dialogue and consensus-building on
peace agenda and initiatives.[138]

PAPP Esperon committed grave abuse


of discretion
The PAPP committed grave abuse of
discretion when he failed to carry out the
pertinent consultation. The furtive process by
which the MOA-AD was designed and
crafted runs contrary to and in excess of
the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.
The Court may not, of course, require the
PAPP to conduct the consultation in a
particular way or manner. It may, however,
require him to comply with the law and
discharge the functions within the authority
granted by the President.[139]
Petitioners are not claiming a seat at the
negotiating table, contrary to respondents
retort in justifying the denial of petitioners
right to be consulted. Respondents stance
manifests the manner by which they treat
the salient provisions of E.O. No. 3 on
peoples participation. Such disregard of the
express mandate of the President is not
much different from superficial conduct
toward token provisos that border on classic
lip service.[140] It illustrates a gross evasion of
positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents invocation of the doctrine
of executive privilege, it is not tenable under
the premises. The argument defies sound
reason when contrasted with E.O. No. 3s
explicit provisions on continuing consultation
and dialogue on both national and local
levels. The
executive
order
even
recognizes the exercise of the publics
right even before the GRP makes its official
recommendations or before the government
proffers its definite propositions.[141] It bear
emphasis that E.O. No. 3 seeks to elicit
relevant advice, information, comments and
recommendations from the people through
dialogue.

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In
fine,
E.O.
No.
3
establishes
petitioners right to be consulted on the
peace agenda, as a corollary to the
constitutional right to information and
disclosure.

AT ALL EVENTS, respondents effectively


waived the defense of executive privilege in
view of their unqualified disclosure of the
official copies of the final draft of the MOAAD. By unconditionally complying with the
Courts August 4, 2008 Resolution, without a
prayer for the documents disclosure in
camera, or without a manifestation that it
was complying therewith ex abundante ad
cautelam.
Petitioners
assertion
that
the
Local
Government Code (LGC) of 1991 declares it a
State policy 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[142] is
well-taken. The
LGC
chapter on intergovernmental relations puts
flesh into this avowed policy:
Prior Consultations Required. No project or
program
shall
be
implemented
by
government
authorities unless the
consultations mentioned in Sections 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.[143] (Italics
and
underscoring supplied)
In Lina, Jr. v. Hon. Pao,[144] the Court held that
the above-stated policy and above-quoted
provision of the LGU apply only to national
programs or projects which are to be
implemented
in
a
particular
local
community. Among
the
programs
and
projects covered are those that are critical to
the environment and human ecology
including those that may call for the eviction
of a particular group of people residing in the
locality where these will be implemented.
[145]
The MOA-AD is one peculiar program
that unequivocally and unilaterally
vests ownership of a vast territory to
the Bangsamoro people,[146] which could

With respect to the indigenous cultural


communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by
petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels
of decision-making in matters which may
affect their rights, lives and destinies. [147] The
MOA-AD, an instrument recognizing ancestral
domain, failed to justify its non-compliance
with the clear-cut mechanisms ordained in
said Act,[148] which entails, among other
things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably, the
IPRA
does not grant
the
Executive Department or any government
agency the power to delineate and recognize
an
ancestral
domain
claim by
mere
agreement or compromise. The recognition
of the ancestral domain is the raison detre of
the MOA-AD, without which all other
stipulations or consensus points necessarily
must fail. In proceeding to make a sweeping
declaration on ancestral domain, without
complying with the IPRA, which is cited as
one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of
their authority. As it seems, even the heart
of the MOA-AD is still subject to necessary
changes to the legal framework. While
paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes
to the legal framework, such clause is itself
invalid, as will be discussed in the following
section.
Indeed, ours is an open society, with all the
acts of the government subject to public
scrutiny and available always to public
cognizance. This has to be so if the country
is to remain democratic, with sovereignty
residing in the people and all government
authority emanating from them.[149]
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD,
there can be no question that they cannot all
be accommodated under the present

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pervasively and drastically result to the


diaspora or displacement of a great
number of inhabitants from their total
environment.

Constitution and laws. Respondents have


admitted as much in the oral arguments
before this Court, and the MOA-AD itself
recognizes the need to amend the existing
legal framework to render effective at least
some
of
its
provisions. Respondents,
nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions
therein which are inconsistent with the
present legal framework will not be effective
until the necessary changes to that
framework are made. The validity of this
argument will be considered later. For now,
the Court shall pass upon how
The MOA-AD is inconsistent with the
Constitution and laws as presently
worded.
In general, the objections against the MOAAD center on the extent of the powers
conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE
exceed those granted to any local
government under present laws, and even go
beyond those of the present ARMM. Before
assessing some of the specific powers that
would have been vested in the BJE, however,
it would be useful to turn first to a general
idea that serves as a unifying link to the
different
provisions
of
the
MOA-AD,
namely, the
international
law concept
of association. Significantly,
the
MOA-AD
explicitly alludes to this concept, indicating
that the Parties actually framed its provisions
with it in mind.
Association is referred to in paragraph 3 on
TERRITORY, paragraph 11 on RESOURCES,
and paragraph 4 on GOVERNANCE. It is in
the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE
and the Central Government.
4. The relationship between the Central
Government
and
the
Bangsamoro
juridical entity shall be associative
characterized by shared authority and
responsibility with
a
structure
of
governance based on executive, legislative,
judicial and administrative institutions with
defined powers and functions in the
comprehensive compact. A period of
transition shall be established in a

The
nature
of
the associative relationship may have been
intended to be defined more precisely in the
still
to
be
forged
Comprehensive
Compact. Nonetheless, given that there is a
concept of association in international law,
and the MOA-AD by its inclusion of
international law instruments in its TOR
placed itself in an international legal context,
that concept of association may be brought
to bear in understanding the use of the
term associative in the MOA-AD.

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comprehensive peace compact specifying


the relationship between the Central
Government and the BJE. (Emphasis and
underscoring supplied)

cultural relations. The U.S. government,


when conducting its foreign affairs, is
obligated to consult with the governments of
the Marshall Islands or the FSM on matters
which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the
Marshall Islands or the FSM, the U.S.
government has the authority and obligation
to defend them as if they were part of U.S.
territory. The U.S. government,
moreover,
has the option of establishing and using
military areas and facilities within these
associated states and has the right to bar the
military personnel of any third country from
having access to these territories for military
purposes.

Keitner and Reisman state that


[a]n
association
is
formed
when two states of
unequal
power
voluntarily establish durable links. In the
basic model, one state, the associate,
delegates certain responsibilities to the
other, the principal, while maintaining
its international status as a state. Free
associations represent a middle ground
between
integration
and
independence. x x x[150] (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of
the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of
the U.S.-administered Trust Territory of the
Pacific Islands,[151] are associated states of
the U.S. pursuant to a Compact of Free
Association. The currency in these countries
is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own
travel documents, which is a mark of their
statehood. Their international legal status as
states was confirmed by the UN Security
Council and by their admission to UN
membership.
According to their compacts of free
association, the Marshall Islands and
the FSM generally have the capacity to
conduct foreign affairs in their own name and
right, such capacity extending to matters
such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and

It bears noting that in U.S. constitutional and


international practice, free association is
understood as an international association
between sovereigns. The Compact of Free
Association is a treaty which is subordinate
to
the
associated
nations
national
constitution, and each party may terminate
the association consistent with the right
of independence. It has been said that, with
the admission of the U.S.-associated
states to the UN in 1990, the UN recognized
that the American model of free association
is actually based on an underlying status
of independence.[152]
In international practice, the associated
state arrangement has usually been used as
a transitional device of former colonies on
their way to full independence. Examples of
states that have passed through the status
of associated states as a transitional phase
areAntigua, St.
Kitts-NevisAnguilla, Dominica, St.
Lucia, St.
Vincent and Grenada. All have since become
independent states.[153]
Back to the MOA-AD, it contains many
provisions which are consistent with the
international legal concept of association,
specifically the following: the BJEs capacity
to enter into economic and trade relations
with foreign countries, the commitment of
the Central Government to ensure the BJEs
participation in meetings and events in the
ASEAN and the specialized UN agencies, and
the continuing responsibility of the Central

These provisions of the MOA indicate, among


other things, that the Parties aimed to vest
in the BJE the status of an associated
state or, at any rate, a status closely
approximating it.
The
concept
of association is not recognized under t
he present Constitution
No province, city, or municipality, not even
the ARMM, is recognized under our laws as
having an associative relationship with the
national government. Indeed, the concept
implies powers that go beyond anything ever
granted by the Constitution to any local or
regional government. It also implies the
recognition of the associated entity as a
state. The Constitution, however, does not
contemplate any state in this jurisdiction
other than the Philippine State, much less
does it provide for a transitory status that
aims to prepare any part of Philippine
territory for independence.
Even the mere concept animating many of
the MOA-ADs provisions, therefore, already
requires for its validity the amendment of
constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political
subdivisions
of
the
Republic
of
the Philippines are the provinces, cities,
municipalities, and barangays. There
shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter
provided.
SECTION
15. There
shall
be
created
autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces,

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Government
over
external
defense. Moreover,
the BJEs
right
to
participate in Philippine official missions
bearing
on
negotiation
of
border
agreements, environmental protection, and
sharing of revenues pertaining to the bodies
of water adjacent to or between the islands
forming
part
of
the
ancestral
domain, resembles
the
right
of
the
governments of FSM and the Marshall Islands
to be consulted by the U.S. government on
any foreign affairs matter affecting them.

cities, municipalities, and geographical areas


sharing common and distinctive historical
and cultural heritage, economic and social
structures,
and
other
relevant
characteristics within the framework of
this Constitution and the national
sovereignty as well as territorial
integrity
of
the
Republic
of
the Philippines.
The BJE is a far more powerful entity
than the autonomous region recognized
in the Constitution
It is not merely an expanded version of the
ARMM, the status of its relationship with the
national government being fundamentally
different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the
criteria of a state laid down in the
Montevideo
Convention,[154] namely,
a permanent population, a defined territory,
a government, and a capacity to enter into
relations with other states.
Even assuming arguendo that the MOA-AD
would not necessarily sever any portion of
Philippine territory, the spirit animating
it which has betrayed itself by its use of the
concept of association runs counter to the
national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the
relationship
between
the
national
government and the BJE being itself
contrary to the present Constitution, it
is not surprising that many of the
specific provisions of the MOA-AD on
the formation and powers of the BJE are
in conflict with the Constitution and the
laws.
Article X, Section 18 of the Constitution
provides that [t]he creation
of the
autonomous region shall be effective when
approved by a majority of the votes cast by
the constituent units in a plebiscite called for
the purpose, provided that only provinces,
cities, and geographic areas voting
favorably in such plebiscite shall be
included
in
the
autonomous
region. (Emphasis supplied)

The MOA-AD, moreover, would not


comply with Article X, Section 20 of the
Constitution
since that provision defines the powers of
autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction
and subject to the provisions of this
Constitution and national laws, the organic
act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning
development;
(6) Economic,
social,
and
tourism
development;
(7) Educational policies;
(8) Preservation and development of the
cultural heritage; and
(9) Such other matters as may be authorized
by law for the promotion of the general
welfare
of
the
people
of
the
region. (Underscoring supplied)

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As reflected above, the BJE is more of a state


than an autonomous region. But even
assuming that it is covered by the term
autonomous region in the constitutional
provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in
addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM
during the 2001 plebiscite Baloi, Munai,
Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of
another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier
in
the
overview. That the
present
components of the ARMM and the abovementioned municipalities voted for inclusion
therein in 2001, however, does not render
another plebiscite unnecessary under the
Constitution, precisely because what these
areas voted for then was their inclusion in
the ARMM, not the BJE.

Again on the premise that the BJE may be


regarded as an autonomous region, the MOAAD would require an amendment that would
expand the above-quoted provision. The
mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new
law that might vest in the BJE the powers
found in the MOA-AD must, itself, comply
with other provisions of the Constitution. It
would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4
of the strand on RESOURCES which states:
The BJE is free to enter into any economic
cooperation and trade relations with foreign
countries: provided, however, that such
relationships and understandings do not
include aggression against the Government
of the Republic of the Philippines x x x. Under
our constitutional system, it is only the
President who has that power. Pimentel v.
Executive Secretary[155] instructs:
In our system of government, the President,
being the head of state, is regarded
as the sole
organ and
authority
in
external relations and is the country's
sole
representative
with
foreign
nations. As the chief architect of foreign
policy, the President acts as the country's
mouthpiece with respect to international
affairs. Hence, the President is vested
with the authority to deal with foreign
states and governments, extend or withhold
recognition, maintain
diplomatic
relations, enter into treaties, and
otherwise transact the business of
foreign relations. In the realm of treatymaking, the President has the sole
authority to negotiate with other
states. (Emphasis
and
underscoring
supplied)
Article II, Section 22 of the Constitution
must also be amended if the scheme
envisioned in the MOA-AD is to be
effected.That
constitutional
provision
states: The State recognizes and promotes
the
rights
of indigenous
cultural
communities within
the
framework
of national
unity and
development. (Underscoring

Besides being irreconcilable with the


Constitution,
the
MOA-AD
is
also inconsistent
with
prevailing
statutory law, among which are R.A. No.
9054[156] or the Organic Act of the ARMM,
and the IPRA.[157]
Article X, Section 3 of the Organic Act of
the ARMM is a bar to the adoption of
the
definition
of
Bangsamoro
people used in the MOA-AD. Paragraph 1
on CONCEPTS AND PRINCIPLES states:
1. It is the birthright of all Moros and all
Indigenous
peoples
of Mindanao to
identify themselves and be accepted as
Bangsamoros.The
Bangsamoro
people
refers to those who are natives or original
inhabitants
of
Mindanao
and
its
adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or
colonization of its descendants whether
mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro.
The freedom of choice of the Indigenous
people shall be respected. (Emphasis and
underscoring supplied)
This use of the term Bangsamoro sharply
contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather
than lumping together the identities of the
Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal
peoples, as follows:
As used in this Organic Act, the phrase
indigenous
cultural
community
refers
to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose
social, cultural and economic conditions

93

distinguish them from other sectors of the


national community; and

supplied) An associative arrangement


does
not uphold national unity.While there may be
a semblance of unity because of the
associative ties between the BJE and the
national government, the act of placing a
portion of Philippine territory in a status
which, in international practice, has generally
been a preparation for independence, is
certainly not conducive to national unity.

(b) Bangsa
Moro
people. These
are
citizens
who
are believers
in
Islam and who have retained some or all
of their own social, economic, cultural,
and political institutions.
Respecting the IPRA, it lays down the
prevailing procedure for the delineation and
recognition of ancestral domains. The MOAADs manner of delineating the ancestral
domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph
1 of TERRITORY, the Parties simply agree
that, subject to the delimitations in the
agreed
Schedules,
[t]he
Bangsamoro
homeland and historic territory refer to the
land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and
the aerial domain, the atmospheric space
above it, embracing the Mindanao-SuluPalawan geographic region.
Chapter VIII of the IPRA, on the other hand,
lays down a detailed procedure, as illustrated
in the following provisions thereof:
SECTION
52. Delineation
Process.
The
identification and delineation of ancestral
domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. The process of
delineating a specific perimeter may be
initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority
of the members of the ICCs/IPs;
c) Delineation Proper. The official delineation
of ancestral domain boundaries including
census of all community members therein,
shall be immediately undertaken by the
Ancestral Domains Office upon filing of the
application by the ICCs/IPs concerned.
Delineation will be done in coordination with
the community concerned and shall at all
times include genuine involvement and
participation by the members of the
communities concerned;

1) Written accounts of the ICCs/IPs customs


and traditions;
2) Written accounts of the ICCs/IPs political
structure and institution;
3) Pictures showing long term occupation
such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and
agreements concerning boundaries entered
into by the ICCs/IPs concerned with other
ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of
traditional communal forests and hunting
grounds;
9) Pictures and descriptive histories of
traditional landmarks such as mountains,
rivers, creeks, ridges, hills, terraces and the
like; and
10) Write-ups of names and places derived
from the native dialect of the community.
e) Preparation of Maps. On the basis of such
investigation and the findings of fact based
thereon, the Ancestral Domains Office of the
NCIP shall prepare a perimeter map,
complete with technical descriptions, and a
description of the natural features and
landmarks embraced therein;
f) Report
of
Investigation
and
Other
Documents. A complete copy of the
preliminary census and a report of

94

investigation, shall be prepared by


Ancestral Domains Office of the NCIP;

the

d) Proof Required. Proof of Ancestral Domain


Claims shall include the testimony of elders
or community under oath, and other
documents directly or indirectly attesting to
the possession or occupation of the area
since time immemorial by such ICCs/IPs in
the concept of owners which shall be any
one
(1)
of
the
following
authentic
documents:

g) Notice and Publication. A copy of each


document, including a translation in the
native language of the ICCs/IPs concerned
shall be posted in a prominent place therein
for at least fifteen (15) days. A copy of the
document shall also be posted at the local,
provincial and regional offices of the NCIP,
and shall be published in a newspaper of
general circulation once a week for two (2)
consecutive weeks to allow other claimants
to file opposition thereto within fifteen (15)
days from date of such publication: Provided,
That in areas where no such newspaper
exists, broadcasting in a radio station will be
a valid substitute: Provided, further, That
mere posting shall be deemed sufficient if
both newspaper and radio station are not
available;
h) Endorsement to NCIP. Within fifteen (15)
days from publication, and of the inspection
process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed
to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral
Domains Office shall require the submission
of additional evidence: Provided, That the
Ancestral Domains Office shall reject any
claim that is deemed patently false or
fraudulent after inspection and verification:
Provided, further, That in case of rejection,
the Ancestral Domains Office shall give the
applicant due notice, copy furnished all
concerned, containing the grounds for denial.
The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where
there are conflicting claims among ICCs/IPs
on the boundaries of ancestral domain
claims, the Ancestral Domains Office shall
cause the contending parties to meet and
assist them in coming up with a preliminary
resolution of the conflict, without prejudice to
its full adjudication according to the section
below.
xxxx
To
remove
all
doubts
about
the
irreconcilability of the MOA-AD with the
present legal system, a discussion of not only
the Constitution and domestic statutes, but
also of international law is in order, for

Applying this provision of the Constitution,


the Court, in Mejoff v. Director of Prisons,
[158]
held that the Universal Declaration of
Human Rights is part of the law of the land
on account of which it ordered the release on
bail of a detained alien of Russian descent
whose deportation order had not been
executed even after two years. Similarly, the
Court in Agustin v. Edu[159] applied the
aforesaid constitutional provision to the 1968
Vienna Convention on Road Signs and
Signals.
International law has long recognized the
right to self-determination of peoples,
understood not merely as the entire
population of a State but also a portion
thereof. In considering the question of
whether the people of Quebec had a right to
unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC[160] had occasion to
acknowledge that the right of a people to
self-determination
is
now
so
widely
recognized in international conventions that
the principle has acquired a status beyond
convention and is considered a general
principle of international law.
Among the conventions referred to are the
International Covenant on Civil and Political
Rights[161] and the International Covenant on
Economic,
Social
and
Cultural
Rights[162] which state, in Article 1 of both
covenants, that all peoples, by virtue of the
right of self-determination, freely determine
their political status and freely pursue their
economic, social, and cultural development.
The peoples right to self-determination
should not, however, be understood as
extending to a unilateral right of secession. A
distinction should be made between the right
of
internal
and
external
selfdetermination. REFERENCE RE SECESSION
OF QUEBEC is again instructive:
(ii) Scope of the Right to Self-determination

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Article II, Section 2 of the Constitution


states that the Philippines adopts the
generally
accepted
principles
of
international law as part of the law of
the land.

126. The recognized sources of international


law establish that the right to selfdetermination of a people is normally
fulfilled
throughinternal selfdetermination a peoples pursuit of its
political, economic, social and cultural
development within the framework of
an
existing
state. A
right
to external self-determination (which in
this case potentially takes the form of
the assertion of a right to unilateral
secession) arises in only the most
extreme of cases and, even then, under
carefully defined circumstances. x x x
External self-determination
can
be
defined as in the following statement
from
the Declaration
on
Friendly
Relations, supra, as
The establishment of a sovereign and
independent State, the free association
or integration with an independent
State or the emergence into any other
political status freely determined by
a people constitute modes of implementing
the right of self-determination by that
people. (Emphasis added)
127. The international law principle of
self-determination has evolved within a
framework of respect for the territorial
integrity of existing states. The various
international documents that support the
existence of a peoples right to selfdetermination
also
contain
parallel
statements supportive of the conclusion that
the exercise of such a right must be
sufficiently limited to prevent threats to an
existing states territorial integrity or the
stability of relations between sovereign
states.
x x x x (Emphasis, italics and underscoring
supplied)
The Canadian Court went on to discuss the
exceptional cases in which the right
to external self-determination
can
arise,
namely, where a people is under colonial
rule, is subject to foreign domination or
exploitation outside a colonial context, and
less definitely but asserted by a number of
commentators
is
blocked
from
the

The exceptional nature of the right of


secession is further exemplified in the
REPORT
OF
THE
INTERNATIONAL
COMMITTEEOF JURISTS ON THE LEGAL
ASPECTS
OF
THE
AALAND ISLANDS
QUESTION.[163] There, Sweden presented
to
the Council of the League of Nations the
question of whether the inhabitants of
the Aaland Islands should be authorized to
determine by plebiscite if the archipelago
should remain under Finnish sovereignty or
be
incorporated
in
the kingdom of Sweden. The Council, before
resolving the question, appointed an
International Committee composed of three
jurists to submit an opinion on the
preliminary issue of whether the dispute
should, based on international law, be
entirely left to the domestic jurisdiction of
Finland.The Committee stated the rule as
follows:
x x x [I]n the absence of express provisions
in international treaties, the right of
disposing
of national
territory
is
essentially
an
attribute
of
the
sovereignty of every State. Positive
International Law does not recognize
the right of national groups, as such, to
separate themselves from the State of
which they form part by the simple
expression of a wish, any more than it
recognizes the right of other States to claim
such a separation. Generally speaking,
the grant or refusal of the right to a
portion of its population of determining
its own political fate by plebiscite or by
some other method, is, exclusively, an
attribute of the sovereignty of every
State which is definitively constituted. A
dispute between two States concerning such
a
question,
under
normal
conditions

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meaningful
exercise
of
its
right
to internal self-determination. The
Court
ultimately held that the population of
Quebec had no right to secession, as the
same is not under colonial rule or foreign
domination, nor is it being deprived of the
freedom to make political choices and pursue
economic, social and cultural development,
citing that Quebec is equitably represented
in
legislative,
executive
and
judicial
institutions within Canada, even occupying
prominent positions therein.

therefore, bears upon a question which


International Law leaves entirely to the
domestic jurisdiction of one of the States
concerned. Any other solution would amount
to an infringement of sovereign rights of a
State and would involve the risk of creating
difficulties and a lack of stability which would
not only be contrary to the very idea
embodied in term State, but would also
endanger the interests of the international
community. If this right is not possessed by a
large or small section of a nation, neither can
it be held by the State to which the national
group wishes to be attached, nor by any
other State. (Emphasis and underscoring
supplied)
The Committee held that the dispute
concerning the Aaland Islands did not refer
to a question which is left by international
law to the domestic jurisdiction of Finland,
thereby applying the exception rather than
the rule elucidated above. Its ground for
departing from the general rule, however,
was a very narrow one, namely, the Aaland
Islands agitation originated at a time
when Finland was undergoing drastic political
transformation. The
internal
situation
of Finland was, according to the Committee,
so abnormal that, for a considerable time,
the conditions required for the formation of a
sovereign State did not exist. In the midst of
revolution, anarchy, and civil war, the
legitimacy
of
the
Finnish
national
government was disputed by a large section
of the people, and it had, in fact, been
chased from the capital and forcibly
prevented from carrying out its duties. The
armed camps and the police were divided
into two opposing forces. In light of these
circumstances, Finland was not, during the
relevant
time
period,
a
definitively
constituted sovereign state. The Committee,
therefore, found that Finland did not possess
the right to withhold from a portion of its
population the option to separate itself a
right which sovereign nations generally have
with respect to their own populations.
Turning now to the more specific category
of indigenous peoples, this term has been
used, in scholarship as well as international,
regional, and state practices, to refer to
groups with distinct cultures, histories, and

As with the broader category of peoples,


indigenous peoples situated within states do
not have a general right to independence or
secession
from
those
states
under
international law,[165] but they do have rights
amounting to what was discussed above as
the right to internal self-determination.
In a historic development last September 13,
2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of
Indigenous
Peoples
(UN
DRIP)
through General
Assembly
Resolution
61/295. The
vote
was 143
to
4,
the Philippines being included among those
in favor, and the four voting against
being Australia, Canada, New Zealand, and
the U.S. The Declaration clearly recognized
the right of indigenous peoples to selfdetermination, encompassing the right to
autonomy or self-government, to wit:
Article 3

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connections to land (spiritual and otherwise)


that have been forcibly incorporated into a
larger governing society. These groups are
regarded as indigenous since they are the
living
descendants
of
pre-invasion
inhabitants of lands now dominated by
others. Otherwise
stated,
indigenous
peoples, nations, or communities are
culturally distinctive groups that find
themselves engulfed by settler societies born
of the forces of empire and conquest.
[164]
Examples of groups who have been
regarded as indigenous peoples are the
Maori of New Zealand and the aboriginal
peoples of Canada.

Article 5
Indigenous peoples have the right to
maintain and strengthen their distinct
political, legal, economic, social and cultural
institutions, while retaining their right to
participate fully, if they so choose, in the
political, economic, social and cultural life of
the State.
Self-government, as used in international
legal discourse pertaining to indigenous
peoples, has been understood as equivalent
to internal self-determination.[166] The extent
of self-determination provided for in the UN
DRIP is more particularly defined in its
subsequent articles, some of which are
quoted hereunder:
Article 8
1. Indigenous peoples and individuals have
the right not to be subjected to forced
assimilation or destruction of their culture.
2. States
shall
mechanisms for
redress for:

provide
effective
prevention of, and

(a) Any action which has the aim or


effect of depriving them of their
integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b) Any action which has the aim or
effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population
transfer which has the aim or effect of
violating or undermining any of their
rights;

Indigenous peoples have the right to selfdetermination. By virtue of that right they
freely determine their political status and
freely pursue their economic, social and
cultural development.

(d) Any form


integration;

of

forced

assimilation

or

Article 4

Article 21

Indigenous peoples, in exercising their right


to
self-determination,
have the
right
to autonomy or self-government in
matters relating to their internal and
local affairs, as well as ways and means for
financing their autonomous functions.

1. Indigenous peoples have the right,


without discrimination, to the improvement
of their economic and social conditions,
including, inter alia, in the areas of
education, employment, vocational training
and retraining, housing, sanitation, health
and social security.

(e) Any form of propaganda designed to


promote or incite racial or ethnic
discrimination directed against them.

Article 26
1. Indigenous peoples have the right to
the lands, territories and resources
which they have traditionally owned,
occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own,
use, develop and control the lands, territories
and resources that they possess by reason of
traditional ownership or other traditional
occupation or use, as well as those which
they have otherwise acquired.
3. States shall give legal recognition and
protection to these lands, territories and
resources.
Such
recognition
shall
be
conducted with due respect to the customs,
traditions and land tenure systems of the
indigenous peoples concerned.

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2. States shall take effective measures and,


where appropriate, special measures to
ensure continuing improvement of their
economic and social conditions. Particular
attention shall be paid to the rights and
special needs of indigenous elders, women,
youth, children and persons with disabilities.

other resources, particularly in connection


with
the
development,
utilization
or
exploitation of mineral, water or other
resources.
3. States shall provide effective mechanisms
for just and fair redress for any such
activities, and appropriate measures shall be
taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the
recognition, observance and enforcement of
treaties, agreements and other constructive
arrangements concluded with States or their
successors and to have States honour and
respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be
interpreted as diminishing or eliminating the
rights of indigenous peoples contained in
treaties, agreements and other constructive
arrangements.

Article 30

Article 38

1. Military activities shall not take place in


the lands or territories of indigenous peoples,
unless justified by a relevant public interest
or otherwise freely agreed with or requested
by the indigenous peoples concerned.

States in consultation and cooperation with


indigenous
peoples,
shall
take
the
appropriate measures, including legislative
measures, to achieve the ends of this
Declaration.

2. States
shall
undertake
effective
consultations with the indigenous peoples
concerned, through appropriate procedures
and in particular through their representative
institutions, prior to using their lands or
territories for military activities.

Assuming that the UN DRIP, like the


Universal Declaration on Human Rights, must
now be regarded as embodying customary
international law a question which the Court
need not definitively resolve here the
obligations enumerated therein do not
strictly require the Republic to grant the
Bangsamoro
people,
through
the
instrumentality of the BJE, the particular
rights and powers provided for in the MOAAD. Even the more specific provisions of the
UN DRIP are general in scope, allowing for
flexibility in its application by the different
States.
There is, for instance, no requirement in the
UN DRIP that States now guarantee
indigenous peoples their own police and
internal security force. Indeed, Article 8
presupposes that it is the State which will
provide protection for indigenous peoples

Article 32
1. Indigenous peoples have the right to
determine and develop priorities and
strategies for the development or use of
their lands or territories and other resources.
2. States shall consult and cooperate in
good faith with the indigenous peoples
concerned through their own representative
institutions in order to obtain their free and
informed consent prior to the approval of any
project affecting their lands or territories and

Moreover, the UN DRIP, while upholding the


right of indigenous peoples to autonomy,
does not obligate States to grant indigenous
peoples the near-independent status of an
associated state. All the rights recognized in
that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may
be interpreted as implying for any State,
people, group or person any right to engage
in any activity or to perform any act contrary
to the Charter of the United Nations
or construed
as
authorizing or
encouraging any action which would
dismember or impair, totally or in part,
the territorial integrity or political
unity of sovereign and independent
States.
Even if the UN DRIP were considered as part
of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD
so as to render its compliance with other
laws unnecessary.
It is, therefore, clear that the MOA-AD
contains numerous provisions that
cannot
be
reconciled
with
the
Constitution and the laws as presently
worded. Respondents proffer, however, that
the signing of the MOA-AD alone would not
have entailed any violation of law or grave
abuse of discretion on their part, precisely
because it stipulates that the provisions

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against acts like the forced dispossession of


their lands a function that is normally
performed by police officers. If the protection
of a right so essential to indigenous peoples
identity is acknowledged to be the
responsibility of the State, then surely the
protection of rights less significant to them
as such peoples would also be the duty of
States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous
peoples
to
the
aerial
domain
and
atmospheric space. What it upholds, in
Article 26 thereof, is the right of indigenous
peoples to the lands, territories and
resources
which
they
have traditionally owned,
occupied
or
otherwise used or acquired.

thereof inconsistent with the laws shall not


take effect until these laws are amended.
They cite paragraph 7 of the MOA-AD strand
on GOVERNANCE quoted earlier, but which is
reproduced below for convenience:
7. The Parties agree that the mechanisms
and modalities for the actual implementation
of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take
such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework
shall come into force upon signing of a
Comprehensive Compact and upon effecting
the necessary changes to the legal
framework with due regard to non derogation
of prior agreements and within the stipulated
timeframe
to
be
contained
in
the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many
controversial provisions of the MOA-AD from
coming into force until the necessary
changes to the legal framework are
effected. While the word Constitution is
not mentioned in the provision now
under consideration or anywhere else in
the MOA-AD, the term legal framework
is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause,
however, respondents, by their mere act of
incorporating in the MOA-AD the provisions
thereof regarding the associative relationship
between
the
BJE
and
the
Central
Government, have already violated the
Memorandum of Instructions From The
President dated March 1, 2001, which states
that the negotiations shall be conducted in
accordance with x x x the principles of the
sovereignty and territorial integrity of the
Republic of the Philippines. (Emphasis
supplied) Establishing
an
associative
relationship between the BJE and the Central
Government is, for the reasons already
discussed, a preparation for independence,
or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned
Memorandum, however, the MOA-AD is
defective because the suspensive clause is
invalid, as discussed below.

It bears noting that the GRP Peace Panel, in


exploring lasting solutions to the Moro
Problem through its negotiations with the
MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as
they presently stand. One of the components
of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the Paths
to Peace, is the pursuit of social, economic,
and political reforms which may require new
legislation
or
even
constitutional
amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,
[167]
states:
SECTION 4. The Six Paths to Peace. The
components of the comprehensive peace
process comprise the processes known as
the Paths to Peace. These component
processes are interrelated and not mutually
exclusive, and must therefore be pursued
simultaneously in a coordinated and
integrated fashion. They shall include, but
may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND
POLITICAL
REFORMS. This
component
involves the vigorous implementation of
various policies, reforms, programs and
projects aimed at addressing the root
causes of internal armed conflicts and
social
unrest. This
may
require
administrative action, new legislation or
even constitutional amendments.

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The authority of the GRP Peace Negotiating


Panel to negotiate with the MILF is founded
on E.O. No. 3, Section 5(c), which states that
there shall be established Government Peace
Negotiating Panels for negotiations with
different rebel groups to be appointed by the
President as her official emissaries to
conduct negotiations, dialogues, and face-toface discussions with rebel groups. These
negotiating panels are to report to the
President, through the PAPP on the conduct
and progress of the negotiations.

in Mindanao. The E.O. authorized them to


think outside the box, so to speak.Hence,
they negotiated and were set on signing the
MOA-AD that included various social,
economic, and political reforms which
cannot, however, all be accommodated
within the present legal framework, and
which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the suspensive
clause, however, cannot stop here, because
it must be asked
whether the President herself may
exercise
the
power delegated
to
the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that
she herself does not possess. May the
President,
in
the
course
of
peace
negotiations, agree to pursue reforms that
would
require
new
legislation
and
constitutional amendments, or should the
reforms be restricted only to those solutions
which the present laws allow? The answer to
this question requires a discussion of
the extent of the Presidents power to
conduct peace negotiations.
That the authority of the President to
conduct peace negotiations with rebel
groups is not explicitly mentioned in the
Constitution does not mean that she has no
such authority. In Sanlakas v. Executive
Secretary,[168] in issue was the authority of
the President to declare a state of rebellion
an authority which is not expressly provided
for in the Constitution. The Court held thus:
In her ponencia in Marcos v. Manglapus,
Justice
Cortes
put
her
thesis
into
jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to
forbid the return of her exiled predecessor.
The rationale for the majority's ruling rested
on the President's

x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be
perceived as an attempt of respondents to
address, pursuant to this provision of E.O.
No. 3, the root causes of the armed conflict

. . . unstated residual powers which are


implied from the grant of executive
power and which are necessary for her
to comply with her duties under the
Constitution. The
powers
of
the
President are not limited to what are

Thus, the
President's
authority
to
declare a state of rebellion springs in
the main from her powers as chief
executive and, at the same time, draws
strength from her Commander-in-Chief
powers. x x x (Emphasis and underscoring
supplied)
Similarly, the Presidents power to conduct
peace negotiations is implicitly included in
her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the
President has the general responsibility to
promote public peace, and as Commanderin-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless
violence.[169]
As the experience of nations which have
similarly gone through internal armed
conflict will show, however, peace is rarely
attained by simply pursuing a military
solution. Oftentimes, changes as far-reaching
as a fundamental reconfiguration of the
nations
constitutional
structure
is
required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful
political and governance transition must form
the core of any post-conflict peace-building
mission.
As
we
have
observed
in Liberia and Haiti over the last ten years,
conflict cessation without modification of the
political environment, even where statebuilding is undertaken through technical
electoral assistance and institution- or
capacity-building, is unlikely to succeed. On
average, more than 50 percent of states
emerging
from
conflict
return
to
conflict. Moreover, a substantial proportion of

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expressly enumerated in the article on


the Executive Department and in
scattered
provisions
of
the
Constitution. This is so, notwithstanding
the avowed intent of the members of the
Constitutional Commission of 1986 to limit
the powers of the President as a reaction to
the abuses under the regime of Mr. Marcos,
for the result was a limitation of specific
powers of the President, particularly those
relating to the commander-in-chief clause,
but not a diminution of the general grant of
executive power.

transitions have resulted in weak or limited


democracies.
The design of a constitution and its
constitution-making process can play an
important
role
in
the
political
and
governance
transition.Constitution-making
after conflict is an opportunity to create a
common vision of the future of a state and a
road map on how to get there. The
constitution can be partly a peace
agreement and partly a framework setting
up the rules by which the new democracy
will operate.[170]
In the same vein, Professor Christine Bell, in
her article on the nature and legal status of
peace agreements, observed that the typical
way that peace agreements establish or
confirm mechanisms for demilitarization and
demobilization is by linking them to new
constitutional
structures addressing
governance, elections, and legal and human
rights institutions.[171]
In the Philippine experience, the link
between peace agreements and constitutionmaking has been recognized by no less than
the framers of the Constitution. Behind the
provisions of the Constitution on autonomous
regions[172] is the framers intention to
implement a particular peace agreement,
namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by
then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman
Nur Misuari.
MR. ROMULO. There are other speakers; so,
although I have some more questions, I will
reserve my right to ask them if they are not
covered by the other speakers. I have only
two questions.
I heard one of the Commissioners say
that local autonomy already exists in
the Muslim region; it is working very well;
it has, in fact, diminished a great deal of the
problems. So, my question is: since that
already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of
Chairman
Nolledo. Commissioner
Yusup
Abubakar is right that certain definite
steps have been taken to implement the
provisions of the Tripoli Agreement with

The constitutional provisions on autonomy


and the statutes enacted pursuant to them
have, to the credit of their drafters, been
partly successful. Nonetheless, the Filipino
people are still faced with the reality of an
on-going conflict between the Government
and the MILF. If the President is to be
expected to find means for bringing this
conflict to an end and to achieve lasting
peace in Mindanao, then she must be given
the leeway to explore, in the course of peace
negotiations, solutions that may require
changes to the Constitution for their
implementation. Being uniquely vested with
the power to conduct peace negotiations
with rebel groups, the President is in a
singular position to know the precise nature
of their grievances which, if resolved, may
bring an end to hostilities.
The President may not, of course, unilaterally
implement the solutions that she considers
viable, but she may not be prevented from
submitting them as recommendations to
Congress, which could then, if it is minded,
act upon them pursuant to the legal
procedures for constitutional amendment
and revision. In particular, Congress would
have the option, pursuant to Article XVII,
Sections 1 and 3 of the Constitution, to
propose the recommended amendments or
revision to the people, call a constitutional
convention, or submit to the electorate the
question of calling such a convention.
While the President does not possess
constituent powers as those powers may be
exercised only by Congress, a Constitutional
Convention, or the people through initiative
and referendum she may submit proposals
for constitutional change to Congress in a
manner that does not involve the arrogation
of constituent powers.

102
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respect to an autonomous region


in Mindanao. This is a good first step,
but there is no question that this is
merely
a
partial
response
to
the Tripoli Agreement itself and to the
fuller standard of regional autonomy
contemplated in that agreement, and
now
by
state
policy.[173] (Emphasis
supplied)

In Sanidad v. COMELEC,[174] in issue was the


legality of then President Marcos act of
directly
submitting
proposals
for
constitutional amendments to a referendum,
bypassing the interim National Assembly
which was the body vested by the 1973
Constitution with the power to propose such
amendments. President Marcos, it will be
recalled, never convened the interim
National Assembly. The majority upheld the
Presidents act, holding that the urges of
absolute necessity compelled the President
as the agent of the people to act as he did,
there being no interim National Assembly to
propose constitutional amendments. Against
this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Courts
concern at present, however, is not with
regard to the point on which it was then
divided in that controversial case, but on that
which was not disputed by either side.
Justice Teehankees dissent,[175] in particular,
bears noting. While he disagreed that the
President may directly submit proposed
constitutional amendments to a referendum,
implicit in his opinion is a recognition that he
would have upheld the Presidents action
along with the majority had the President
convened the interim National Assembly and
coursed his proposals through it. Thus Justice
Teehankee opined:
Since the Constitution provides for the
organization of the essential departments of
government, defines and delimits the powers
of each and prescribes the manner of the
exercise of such powers, and the constituent
power has not been granted to but has been
withheld from the President or Prime
Minister, it follows that the Presidents
questioned
decrees
proposing
and
submitting
constitutional
amendments
directly
to
the
people (without
the
intervention of the interim National
Assembly in whom the power is
expressly
vested) are
devoid
of
[176]
constitutional and legal basis.
(Emphasis
supplied)
From the foregoing discussion, the principle
may be inferred that the President in the
course of conducting peace negotiations may
validly consider implementing even those

Since, under the present Constitution, the


people also have the power to directly
propose amendments through initiative and
referendum, the President may also submit
her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite
similar to what President Marcos did
in Sanidad, but for their independent
consideration
of
whether
these
recommendations merit being formally
proposed through initiative.
These recommendations, however, may
amount to nothing more than the Presidents
suggestions to the people, for any further
involvement in the process of initiative by
the Chief Executive may vitiate its character
as a genuine peoples initiative. The only
initiative recognized by the Constitution is
that which truly proceeds from the
people. As the Court stated in Lambino v.
COMELEC:[177]
The Lambino Group claims that their
initiative is the people's voice. However, the
Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of
their petition with the COMELEC, that ULAP
maintains its unqualified support to the
agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms.
The Lambino Group thus admits that their
people's
initiative
is
an unqualified
support to the agenda of the incumbent
President to change the Constitution. This
forewarns the Court to be wary of
incantations of people's voice or sovereign
will in the present initiative.
It will be observed that the President has
authority, as stated in her oath of office,
[178]
only
to preserve
and
defend
the
Constitution. Such presidential power does
not, however, extend to allowing her to
change the Constitution, but simply to
recommend
proposed
amendments
or
revision. As long as she limits herself to
recommending these changes and submits
to the proper procedure for constitutional

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policies that require changes to the


Constitution, but she may not unilaterally
implement them without the intervention
of Congress, or act in any way as if the
assent of that body were assumed as a
certainty.

amendments and revision, her mere


recommendation need not be construed as
an unconstitutional act.
The foregoing discussion focused on the
Presidents
authority
to
propose constitutional amendments, since
her authority to propose new legislation is
not in controversy. It has been an accepted
practice for Presidents in this jurisdiction to
propose new legislation. One of the more
prominent instances the practice is usually
done is in the yearly State of the Nation
Address
of
the
President
to
Congress. Moreover, the annual general
appropriations bill has always been based on
the budget prepared by the President, which
for all intents and purposes is a proposal for
new legislation coming from the President.
[179]

The suspensive clause in the MOA-AD


viewed in light of the above-discussed
standards
Given the limited nature of the Presidents
authority
to
propose
constitutional
amendments, she cannot guarantee to any
third party that the required amendments
will eventually be put in place, nor even be
submitted to a plebiscite. The most she could
do
is
submit
these
proposals
as
recommendations either to Congress or the
people, in whom constituent powers are
vested.
Paragraph 7 on Governance of the MOA-AD
states, however, that all provisions thereof
which cannot be reconciled with the present
Constitution and laws shall come into force
upon signing of a Comprehensive Compact
and upon effecting the necessary changes to
the legal framework. This stipulation does
not bear the marks of a suspensive condition
defined
in
civil
law
as
a
future
and uncertain event but of a term. It is not a
question of whether the necessary changes
to the legal framework will be effected,
butwhen. That there is no uncertainty being
contemplated is plain from what follows, for
the paragraph goes on to state that the
contemplated changes shall be with due
regard
to
non
derogation
of
prior
agreements and within
the
stipulated

the

Pursuant to this stipulation, therefore, it


is mandatory for the GRP to effect the
changes
to
the
legal
framework
contemplated in the MOA-AD which changes
would include constitutional amendments, as
discussed earlier. It bears noting that,
By the time these changes are put in
place, the MOA-AD itself would be
counted among the prior agreements
from
which
there
could
be
no
derogation.
What remains for discussion in the
Comprehensive Compact would merely be
the implementing details for these consensus
points
and,
notably,
the deadline for
effecting the contemplated changes to the
legal framework.
Plainly,
stipulation-paragraph
7
on
GOVERNANCE is inconsistent with the
limits of the Presidents authority to
propose constitutional amendments, it
being a virtual guarantee that the
Constitution and the laws of the Republic of
the Philippines will certainly be adjusted to
conform to all the consensus points found in
the MOA-AD. Hence, it must be struck down
asunconstitutional.
A comparison between the suspensive clause
of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement
between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996
Agreement stipulated that it would be
implemented
in
two
phases. Phase
I covered a three-year transitional period
involving
the
putting
up
of
new
administrative structures through Executive
Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern
Philippines
Council
for
Peace
and
Development
(SPCPD),
whilePhase
II covered the establishment of the new
regional autonomous government through
amendment or repeal of R.A. No. 6734, which
was then the Organic Act of the ARMM.

104

in

timeframe to
be
contained
Comprehensive Compact.

The stipulations on Phase II consisted of


specific agreements on the structure of the
expanded autonomous region envisioned by
the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is,
however, a crucial difference between the
two
agreements. While
the
MOAAD virtually
guarantees
that
the
necessary
changes
to
the
legal
framework will be put in place, the GRPMNLF final peace agreement states thus:
Accordingly, these provisions [on Phase II]
shall be recommended by the GRP to
Congress
for
incorporation
in
the
amendatory or repealing law.
Concerns have been raised that the MOA-AD
would have given rise to a binding
international law obligation on the part of the
Philippines to change its Constitution in
conformity thereto, on the ground that it may
be considered either as a binding agreement
under international law, or a unilateral
declaration of the Philippine government to
the international community that it would
grant to the Bangsamoro people all the
concessions therein stated. Neither ground
finds sufficient support in international law,
however.
The MOA-AD, as earlier mentioned in the
overview thereof, would have included
foreign dignitaries as signatories. In addition,
representatives of other nations were invited
to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise
that the MOA-AD would have had the status
of a binding international agreement had it
been
signed. An
examination
of
the
prevailing principles in international law,
however, leads to the contrary conclusion.
The
Decision
on CHALLENGE
TO
JURISDICTION:
LOM
ACCORD
AMNESTY[180] (the Lom Accord case) of the
Special
Court
of
Sierra
Leone
is
enlightening. The Lom Accord was a peace
agreement signed on July 7, 1999 between
the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone
Government had been in armed conflict for
around eight years at the time of
signing. There
were
non-contracting
signatories to the agreement, among which

On January 16, 2002, after a successful


negotiation between the UN SecretaryGeneral and the Sierra Leone Government,
another agreement was entered into by the
UN and that Government whereby the
Special
Court
of
Sierra
Leone
was
established.The sole purpose of the Special
Court, an international court, was to try
persons who bore the greatest responsibility
for serious violations of international
humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone
since November 30, 1996.
Among the stipulations of the Lom Accord
was a provision for the full pardon of the
members of the RUF with respect to anything
done by them in pursuit of their objectives as
members of that organization since the
conflict began.
In the Lom Accord case, the Defence argued
that the Accord created an internationally
binding obligation not to prosecute the
beneficiaries of the amnesty provided
therein, citing, among other things, the
participation of foreign dignitaries and
international organizations in the finalization
of
that
agreement. The Special
Court,
however, rejected this argument, ruling that
the Lome Accord is not a treaty and that
it can only create binding obligations and
rights between the parties in municipal law,
not in international law. Hence, the Special
Court held, it is ineffective in depriving an
international court like it of jurisdiction.
37. In regard to the nature of a negotiated
settlement of an internal armed conflict it is
easy to assume and to argue with some
degree of plausibility, as Defence
counsel for the defendants seem to
have done, that the mere fact that in
addition to the parties to the conflict,
the
document
formalizing
the
settlement is signed by foreign heads of
state or their representatives and
representatives
of
international
organizations, means the agreement of
the parties is internationalized so as to
create obligations in international law.

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were the Government of the Togolese


Republic, the Economic Community of West
African States, and the UN.

xxxx
40. Almost every conflict resolution will
involve the parties to the conflict and the
mediator or facilitator of the settlement, or
persons or bodies under whose auspices the
settlement took place but who are not at all
parties to the conflict, are not contracting
parties and who do not claim any obligation
from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the
conflict are the lawful authority of the
State and the RUF which has no status
of statehood and is to all intents and
purposes a faction within the state. The
non-contracting signatories of the Lom
Agreement were moral guarantors of
the principle that, in the terms of
Article XXXIV of the Agreement, this
peace agreement is implemented with
integrity and in good faith by both
parties. The moral guarantors assumed
no legal obligation. It is recalled that the
UN
by
its
representative
appended,
presumably for avoidance of doubt, an
understanding of the extent of the
agreement to be implemented as not
including certain international crimes.
42. An international agreement in the nature
of a treaty must create rights and obligations
regulated by international law so that a
breach of its terms will be a breach
determined under international law which
will also provide principle means of
enforcement. The
Lom
Agreement
created neither rights nor obligations
capable
of
being
regulated
by
international law. An agreement such as
the Lom Agreement which brings to an
end an internal armed conflict no doubt
creates
a
factual
situation
of
restoration
of
peace
that
the
international community acting through
the Security Council may take note
of. That, however, will not convert it to
an
international
agreement
which
creates an obligation enforceable in
international, as distinguished from
municipal, law. A breach of the terms of
such a peace agreement resulting in
resumption of internal armed conflict or

Similarly, that the MOA-AD would have been


signed by representatives of States and
international organizations not parties to the
Agreement would not have sufficed to vest in
it a binding character under international
law.
In another vein, concern has been raised that
the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding
under international law, that it would comply
with all the stipulations stated therein, with
the result that it would have to amend its
Constitution accordingly regardless of the
true will of the people. Cited as authority for
this view is Australia v. France,[181] also
known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia
challenged before the ICJ the legality of
Frances nuclear tests in the South
Pacific.France refused to appear in the case,
but public statements from its President, and
similar statements from other French officials
including its Minister of Defence, that its
1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.
[182]
Those
statements,
the
ICJ
held,
amounted to a legal undertaking addressed
to the international community, which
required no acceptance from other States for
it to become effective.

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creating a threat to peace in the


determination of the Security Council may
indicate a reversal of the factual situation of
peace to be visited with possible legal
consequences arising from the new situation
of conflict created. Such consequences such
as action by the Security Council pursuant to
Chapter VII arise from the situation and not
from the agreement, nor from the obligation
imposed by it. Such action cannot be
regarded as a remedy for the breach. A
peace
agreement
which
settles
an internal armed conflict cannot be
ascribed the same status as one which
settles an international armed conflict
which, essentially, must be between
two or more warring States.The Lom
Agreement cannot be characterised as
an international instrument. x x x
(Emphasis, italics and underscoring supplied)

Essential to the ICJ ruling is its finding that


the French government intended to be bound
to the international community in issuing its
public statements, viz:
43. It is well recognized that declarations
made by way of unilateral acts, concerning
legal or factual situations, may have the
effect
of
creating
legal
obligations.
Declarations of this kind may be, and often
are, very specific. When it is the intention
of the State making the declaration that
it should become bound according to its
terms, that intention confers on the
declaration the character of a legal
undertaking,
the
State
being
thenceforth legally required to follow a
course of conduct consistent with the
declaration. An undertaking of this kind, if
given publicly, and with an intent to be
bound, even though not made within the
context of international negotiations, is
binding. In these circumstances, nothing in
the nature of a quid pro quo nor any
subsequent acceptance of the declaration,
nor even any reply or reaction from other
States, is required for the declaration to take
effect, since such a requirement would be
inconsistent with the strictly unilateral nature
of
the
juridical
act by which
the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to
take up a certain position in relation to
a particular matter with the intention of
being boundthe intention is to be
ascertained by interpretation of the
act. When States make statements by which
their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series
of atmospheric tests would be the last,
the French Government conveyed to the
world at large, including the Applicant,
its intention effectively to terminate
these tests. It was bound to assume
that other States might take note of
these statements and rely on their
being effective. The validity of these
statements
and
their
legal
consequences
must
be
considered

As gathered from the above-quoted ruling of


the ICJ, public statements of a state
representative
may
be
construed
as
a unilateral declaration only when the
following conditions are present: the
statements were clearly addressed to the
international community, the state intended
to be bound to that community by its
statements, and that not to give legal effect
to those statements would be detrimental to
the
security
of
international
intercourse. Plainly, unilateral declarations
arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests
Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v.
Mali,[183] also known as the Case Concerning
the Frontier Dispute. The public declaration
subject of that case was a statement made
by the President of Mali, in an interview by a
foreign press agency, that Mali would abide
by the decision to be issued by a commission
of the Organization of African Unity on a
frontier
dispute
then
pending
between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held
that the statement of Malis President was not
a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests
case rested on the peculiar circumstances

107
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within the general framework of the


security of international intercourse,
and the confidence and trust which are so
essential in the relations among States. It is
from the actual substance of these
statements,
and
from
the
circumstances attending their making,
that the legal implications of the
unilateral act must be deduced. The
objects of these statements are clear
and they were addressed to the
international community as a whole,
and the Court holds that they constitute
an
undertaking
possessing
legal
effect. The Court considers *270 that the
President of the Republic, in deciding upon
the effective cessation of atmospheric tests,
gave an undertaking to the international
community to which his words were
addressed. x x x (Emphasis and underscoring
supplied)

surrounding the French declaration subject


thereof, to wit:
40. In order to assess the intentions of the
author of a unilateral act, account must be
taken of all the factual circumstances in
which the act occurred. For example, in the
Nuclear Tests cases, the Court took the
view that since the applicant States
were not the only ones concerned at the
possible continuance of atmospheric
testing by the French Government, that
Government's unilateral declarations
had conveyed to the world at large,
including the Applicant, its intention
effectively
to
terminate
these
tests (I.C.J. Reports 1974, p. 269, para. 51;
p. 474, para. 53). In the particular
circumstances of those cases, the
French Government could not express
an intention to be bound otherwise than
by unilateral declarations. It is difficult
to see how it could have accepted the
terms of a negotiated solution with
each of the applicants without thereby
jeopardizing its contention that its
conduct was lawful. The circumstances
of the present case are radically
different. Here, there was nothing to
hinder the Parties from manifesting an
intention
to
accept
the
binding
character of the conclusions of the
Organization of African Unity Mediation
Commission by the normal method: a
formal agreement on the basis of
reciprocity. Since no agreement of this kind
was concluded between the Parties, the
Chamber finds that there are no grounds to
interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the
present case. (Emphasis and underscoring
supplied)
Assessing the MOA-AD in light of the above
criteria, it would not have amounted to a
unilateral declaration on the part of the
Philippine
State
to
the
international
community. The Philippine panel did not
draft the same with the clear intention of
being bound thereby to the international
community as a whole or to any State, but
only to the MILF. While there were States and
international organizations involved, one way

Since the commitments in the MOA-AD were


not addressed to States, not to give legal
effect to such commitments would not be
detrimental to the security of international
intercourse to the trust and confidence
essential in the relations among States.
In one important respect, the circumstances
surrounding the MOA-AD are closer to that
of Burkina
Faso wherein,
as
already
discussed, the Mali Presidents statement was
not held to be a binding unilateral
declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine
panel, had it really been its intention to be
bound to other States, to manifest that
intention by formal agreement. Here, that
formal agreement would have come about
by the inclusion in the MOA-AD of a clear
commitment to be legally bound to the
international community, not just the MILF,
and by an equally clear indication that the
signatures of the participating statesrepresentatives
would
constitute
an
acceptance of that commitment. Entering
into such a formal agreement would not have
resulted in a loss of face for the Philippine
government
before
the
international
community, which was one of the difficulties
that prevented the French Government from
entering into a formal agreement with other
countries. That the Philippine panel did not
enter into such a formal agreement suggests
that it had no intention to be bound to the
international community. On that ground, the
MOA-AD may not be considered a unilateral
declaration under international law.
The MOA-AD not being a document that can
bind the Philippines under international law
notwithstanding,
respondents
almost
consummated
act
of guaranteeing
amendments to the legal framework is,

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or another, in the negotiation and projected


signing of the MOA-AD, they participated
merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the Lom
Accord case, the mere fact that in addition to
the parties to the conflict, the peace
settlement is signed by representatives of
states
and
international
organizations
does not mean that the agreement is
internationalized so as to create obligations
in international law.

by itself, sufficient to constitute grave


abuse of discretion. The grave abuse lies
not in the fact that they considered, as a
solution to the Moro Problem, the creation of
a state within a state, but in their
brazen willingness
to guarantee
that
Congress and the sovereign Filipino
people would give their imprimatur to
their solution. Upholding such an act would
amount to authorizing a usurpation of the
constituent powers vested only in Congress,
a Constitutional Convention, or the people
themselves through the process of initiative,
for the only way that the Executive can
ensure the outcome of the amendment
process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go
to the extent of giving up a portion of its own
territory to the Moros for the sake of peace,
for it can change the Constitution in any it
wants, so long as the change is not
inconsistent with what, in international law,
is known as Jus Cogens.[184] Respondents,
however, may not preempt it in that
decision.
SUMMARY
The petitions are ripe for adjudication. The
failure of respondents to consult the local
government units or communities affected
constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover,
respondents exceeded their authority by the
mere act of guaranteeing amendments to
the Constitution. Any alleged violation of the
Constitution by any branch of government is
a proper matter for judicial review.
As the petitions involve constitutional issues
which are of paramount public interest or of
transcendental importance, the Court grants
the petitioners, petitioners-in-intervention
and
intervening
respondents
the
requisite locus standi in keeping with the
liberal
stance
adopted
in David
v.
Macapagal-Arroyo.
Contrary to the assertion of respondents that
the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds

The MOA-AD is a significant part of a series


of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed
by the government and the MILF back in June
2001. Hence, the present MOA-AD can be
renegotiated or another one drawn up that
could
contain
similar
or
significantly
dissimilar provisions compared to the
original.
The Court, however, finds that the prayers
for mandamus have been rendered moot in
view of the respondents action in providing
the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its
annexes.
The peoples right to information on matters
of public concern under Sec. 7, Article III of
the Constitution is in splendid symmetrywith
the state policy of full public disclosure of all
its transactions involving public interest
under
Sec.
28,
Article
II
of
the
Constitution. The
right
to
information
guarantees the right of the people to
demand information, while Section 28
recognizes the duty of officialdom to give
information even if nobody demands. The
complete and effective exercise of the right
to
information
necessitates
that
its
complementary
provision
on
public
disclosure derive the same self-executory
nature,
subject
only
to
reasonable
safeguards or limitations as may be provided
by law.
The contents of the MOA-AD is a matter of
paramount public concern involving public
interest in the highest order. In declaring that
the right to information contemplates steps
and
negotiations
leading
to
the
consummation of the contract, jurisprudence
finds no distinction as to the executory
nature or commercial character of the
agreement.

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that the present petitions provide an


exception to the moot and academic
principle in view of (a) the grave violation of
the
Constitution
involved;
(b)
the
exceptional character of the situation and
paramount public interest; (c) the need to
formulate controlling principles to guide the
bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet
evading review.

An essential element of these twin freedoms


is to keep a continuing dialogue or process of
communication between the government
and the people. Corollary to these twin rights
is the design for feedback mechanisms. The
right to public consultation was envisioned to
be a species of these public rights.
At least three pertinent laws animate these
constitutional imperatives and justify the
exercise of the peoples right to be consulted
on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with
mechanics for continuing consultations on
both national and local levels and for a
principal forum for consensus-building. In
fact, it is the duty of the Presidential Adviser
on the Peace Process to conduct regular
dialogues to seek relevant information,
comments, advice, and recommendations
from peace partners and concerned sectors
of society.
Two, Republic Act No. 7160 or the Local
Government Code of 1991 requires all
national offices to conduct consultations
before any project or program critical to the
environment and human ecology including
those that may call for the eviction of a
particular group of people residing in such
locality, is implemented therein. The MOA-AD
is one peculiar program that unequivocally
and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which
could pervasively and drastically result to the
diaspora or displacement of a great number
of inhabitants from their total environment.
Three, Republic Act No. 8371 or the
Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the
recognition and delineation of ancestral
domain, which entails, among other things,
the observance of the free and prior
informed consent of the Indigenous Cultural
Communities/Indigenous
Peoples. Notably,
the statute does not grant the Executive
Department or any government agency the
power to delineate and recognize an
ancestral domain claim by mere agreement
or compromise.

IN SUM, the Presidential Adviser on the Peace


Process committed grave abuse of discretion
when he failed to carry out the pertinent
consultation process, as mandated by E.O.
No. 3, Republic Act No. 7160, and Republic
Act No. 8371. The furtive process by which
the MOA-AD was designed and crafted runs
contrary to and in excess of the legal
authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion
of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the
present Constitution and laws. Not only
its specific provisions but the very concept
underlying them, namely, the associative
relationship envisioned between the GRP and
the
BJE, are unconstitutional, for
the
concept presupposes that the associated
entity is a state and implies that the same is
on its way to independence.
While there is a clause in the MOA-AD stating
that the provisions thereof inconsistent with
the present legal framework will not be
effective until that framework is amended,

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The invocation of the doctrine of executive


privilege as a defense to the general right to
information or the specific right to
consultation
is
untenable. The
various
explicit legal provisions fly in the face of
executive secrecy. In any event, respondents
effectively waived such defense after it
unconditionally disclosed the official copies
of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.

the same does not cure its defect. The


inclusion of provisions in the MOA-AD
establishing an associative relationship
between the BJE and the Central Government
is, itself, a violation of the Memorandum of
Instructions From The President dated March
1, 2001, addressed to the government peace
panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary
amendments to the Constitution and the
laws will eventually be put in place. Neither
the GRP Peace Panel nor the President
herself is authorized to make such a
guarantee. Upholding such an act would
amount to authorizing a usurpation of the
constituent powers vested only in Congress,
a Constitutional Convention, or the people
themselves through the process of initiative,
for the only way that the Executive can
ensure the outcome of the amendment
process is through an undue influence or
interference with that process.
While the MOA-AD would not amount to an
international
agreement
or
unilateral
declaration binding on the Philippines under
international
law,
respondents
act
of
guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD
fatally defective.
WHEREFORE, respondents motion to dismiss
is DENIED. The main and intervening petitions
are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral
Domain Aspect of the GRP-MILF Tripoli Agreement
on Peace of 2001 is declared CONTRARY TO LAW
AND THE CONSTITUTION.
SO ORDERED

G.R. No. 181527


CENTRAL VISAYAS FISHERFOLK
DEVELOPMENT CENTER (FIDEC), CERILO D.
ENGARCIAL, RAMON YANONG, FRANCISCO
LABID, IN THEIR PERSONAL CAPACITY AND
AS REPRESENTATIVES OF THE SUBSISTENCE
FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU,
AND THEIR FAMILIES, AND THE PRESENT
AND FUTURE GENERATIONS OF FILIPINOS
WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,v. SECRETARY ANGELO
REYES, IN HIS CAPACITY AS SECRETARY OF
THE DEPARTMENT OF ENERGY (DOE), JOSE L.
ATIENZA, IN HIS CAPACITY AS SECRETARY
OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES (DENR),
LEONARDO R. SIBBALUCA, IN HIS CAPACITY
AS DENR REGIONAL DIRECTOR-REGION VII
AND AS CHAIRPERSON OF THE TAON
STRAIT PROTECTED SEASCAPE
MANAGEMENT BOARD, ALAN ARRANGUEZ,
IN HIS CAPACITY AS DIRECTOR
ENVIRONMENTAL MANAGEMENT BUREAUREGION VII, DOE REGIONAL DIRECTOR FOR

111

RESIDENT MARINE MAMMALS OF THE


PROTECTED SEASCAPE TANON STRAIT, E.G.,
TOOTHED WHALES, DOLPHINS, PORPOISES,
AND OTHER CETACEAN SPECIES, JOINED IN
AND REPRESENTED HEREIN BY HUMAN
BEINGS GLORIA ESTENZO RAMOS AND
ROSE-LIZA EISMA-OSORIO, IN THEIR
CAPACITY AS LEGAL GUARDIANS OF THE
LESSER LIFE-FORMS AND AS RESPONSIBLE
STEWARDS OF GOD'S
CREATIONS, Petitioners, v. SECRETARY
ANGELO REYES, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF
ENERGY (DOE), SECRETARY JOSE L. ATIENZA,
IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R.
SIBBALUCA, DENR REGIONAL DIRECTORREGION VII AND IN HIS CAPACITY AS
CHAIRPERSON OF THE TANON STRAIT
PROTECTED SEASCAPE MANAGEMENT
BOARD, BUREAU OF FISHERIES AND
AQUATIC RESOURCES (BFAR), DIRECTOR
MALCOLM I. SARMIENTO, JR., BFAR
REGIONAL DIRECTOR FOR REGION VII
ANDRES M. BOJOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), AS
REPRESENTED BY ITS PHILIPPINE AGENT,
SUPPLY OILFIELD SERVICES,
INC., Respondents.

G.R. No. 180771, April 21, 2015

REGION VIII1 ANTONIO LABIOS, JAPAN


PETROLEUM EXPLORATION CO., LTD.
(JAPEX), AS REPRESENTED BY ITS
PHILIPPINE AGENT, SUPPLY OILFIELD
SERVICES, INC., Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed
under Rule 65 of the 1997 Rules of Court,
concerningService Contract No. 46 (SC-46),
which allowed the exploration, development, and
exploitation of petroleum resources within Taon
Strait, a narrow passage of water situated
between the islands of Negros and Cebu. 2
The Petition docketed as G.R. No. 180771 is an
original Petition for Certiorari, Mandamus, and
Injunction, which seeks to enjoin respondents
from implementing SC-46 and to have it nullified
for willful and gross violation of the 1987
Constitution and certain international and
municipal laws.3
Likewise, the Petition docketed as G.R. No.
181527 is an original Petition for Certiorari,
Prohibition, and Mandamus, which seeks to nullify
the Environmental Compliance Certificate (ECC)
issued by the Environmental Management Bureau
(EMB) of the Department of Environment and
Natural Resources (DENR), Region VII in
connection with SC-46; to prohibit respondents
from implementing SC-46; and to compel public
respondents to provide petitioners access to the
pertinent documents involving the Taon Strait
Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively
referred to as the "Resident Marine Mammals" in
the petition, are the toothed whales, dolphins,
porpoises, and other cetacean species, which
inhabit the waters in and around the Taon Strait.
They are joined by Gloria Estenzo Ramos (Ramos)
and Rose-Liza Eisma-Osorio (Eisma-Osorio) as
their legal guardians and as friends (to be
collectively known as "the Stewards") who
allegedly empathize with, and seek the protection
of, the aforementioned marine species. Also
impleaded as an unwilling co-petitioner is former
President Gloria Macapagal-Arroyo, for her
express declaration and undertaking in the
ASEAN Charter to protect the Taon Strait, among
others.5

Named as respondents in both petitions are the


late Angelo T. Reyes, as then Secretary of the
Department of Energy (DOE); Jose L. Atienza, as
then Secretary of the DENR; Leonardo R.
Sibbaluca, as then DENR-Regional Director for
Region VII and Chairman of the Taon Strait
Protected Seascape Management Board; Japan
Petroleum Exploration Co., Ltd. (JAPEX), a
company organized and existing under the laws
of Japan with a Philippine branch office; and
Supply Oilfield Services, Inc. (SOS), as the alleged
Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded
as additional public respondents: Alan C.
Arranguez (Arranguez) and Antonio Labios
(Labios), in their capacities as then Director of the
EMB, Region VII and then Regional Director of the
DOE, Region VII, respectively.6
On June 13, 2002, the Government of the
Philippines, acting through the DOE, entered into
a Geophysical Survey and Exploration Contract102 (GSEC-102) with JAPEX. This contract
involved geological and geophysical studies of
the Taon Strait. The studies included surface
geology, sample analysis, and reprocessing of
seismic and magnetic data. JAPEX, assisted by
DOE, also conducted geophysical and satellite
surveys, as well as oil and gas sampling in Taon
Strait.7
On December 21, 2004, DOE and JAPEX formally
converted GSEC-102 into SC-46 for the
exploration, development, and production of
petroleum resources in a block covering
approximately 2,850 square kilometers offshore
the Taon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic
surveys in and around the Taon Strait. A multichannel sub-bottom profiling covering
approximately 751 kilometers was also done to
determine the area's underwater composition.9
JAPEX committed to drill one exploration well
during the second sub-phase of the project. Since
the well was to be drilled in the marine waters of
Aloguinsan and Pinamungajan, where the Taon

112
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Petitioners in G.R. No. 181527 are the Central


Visayas Fisherfolk Development Center (FIDEC), a
non-stock, non-profit, non-governmental
organization, established for the welfare of the
marginal fisherfolk in Region VII; and Cerilo D.
Engarcial (Engarcial), Ramon Yanong (Yanong)
and Francisco Labid (Labid), in their personal
capacities and as representatives of the
subsistence fisherfolk of the municipalities of
Aloguinsan and Pinamungajan, Cebu.

Strait was declared a protected seascape in


1988,10 JAPEX agreed to comply with the
Environmental Impact Assessment requirements
pursuant to Presidential Decree No. 1586, entitled
"Establishing An Environmental Impact Statement
System, Including Other Environmental
Management Related Measures And For Other
Purposes."11
On January 31, 2007, the Protected Area
Management Board12 of the Taon Strait (PAMBTaon Strait) issued Resolution No. 2007001,13 wherein it adopted the Initial
Environmental Examination (IEE) commissioned
by JAPEX, and favorably recommended the
approval of JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII
granted an ECC to the DOE and JAPEX for the
offshore oil and gas exploration project in Taon
Strait.14 Months later, on November 16, 2007,
JAPEX began to drill an exploratory well, with a
depth of 3,150 meters, near Pinamungajan town
in the western Cebu Province.15 This drilling lasted
until February 8, 2008.16
It was in view of the foregoing state of affairs that
petitioners applied to this Court for redress, via
two separate original petitions both dated
December 17, 2007, wherein they commonly
seek that respondents be enjoined from
implementing SC-46 for, among others, violation
of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to
Strike17 its name as a respondent on the ground
that it is not the Philippine agent of JAPEX. In
support of its motion, it submitted the branch
office application of JAPEX,18 wherein the latter's
resident agent was clearly identified. SOS claimed
that it had acted as a mere logistics contractor for
JAPEX in its oil and gas exploration activities in
the Philippines.
Petitioners Resident Marine Mammals and
Stewards opposed SOS's motion on the ground
that it was premature, it was pro-forma, and it
was patently dilatory. They claimed that SOS
admitted that "it is in law a (sic) privy to JAPEX"
since it did the drilling and other exploration
activities in Taon Strait under the instructions of
its principal, JAPEX. They argued that it would be
premature to drop SOS as a party as JAPEX had
not yet been joined in the case; and that it was
"convenient" for SOS to ask the Court to simply
drop its name from the parties when what it
should have done was to either notify or ask
JAPEX to join it in its motion to enable proper
substitution. At this juncture, petitioners Resident
Marine Mammals and Stewards also asked the

On April 8, 2008, the Court resolved to


consolidate G.R. No. 180771 and G.R. No.
181527.
On May 26, 2008, the FIDEC manifested20 that
they were adopting in toto the Opposition to
Strike with Motion to Implead filed by petitioners
Resident Marine Mammals and Stewards in G.R.
No. 180771.
On June 19, 2008, public respondents filed their
Manifestation21 that they were not objecting to
SOS's Motion to Strike as it was not JAPEX's
resident agent. JAPEX during all this time, did not
file any comment at all.
Thus, on February 7, 2012, this Court, in an effort
to ensure that all the parties were given ample

113
P

Court to implead JAPEX Philippines as a corespondent or as a substitute for its parent


company, JAPEX.19

chance and opportunity to answer the issues


herein, issued a Resolution directing the Court's
process servicing unit to again serve the parties
with a copy of the September 23, 2008 Resolution
of the Court, which gave due course to the
petitions in G.R. Nos. 180771 and 181527, and
which required the parties to submit their
respective memoranda. The February 7, 2012
Resolution22 reads as follows:
G.R. No. 180771 (Resident Marine Mammals of
the Protected Seascape Taon Strait,e.g., Toothed
Whales, Dolphins, Porpoises and Other Cetacean
Species, et al. vs. Hon. Angelo Reyes, in his
capacity as Secretary of the Department of
Energy, et al.) and G.R. No. 181527 (Central
Visayas Fisherfolk Development Center, et al. vs.
Hon. Angelo Reyes, et al.). - The Court Resolved
to direct the Process Servicing Unit to RESEND the resolution dated September 23, 2008
to the following parties and counsel, together
with this resolution:

114

146 Valero Street


Salcedo Village, Makati City

Atty.Aristeo O. Cario
Counsel for Respondent Supply
Oilfield Services, Inc.

20th Floor Pearlbank Centre

JAPEX Philippines Ltd.

20th Floor Pearlbank Centre


146 Valero Street
Salcedo Village, Makati City

JAPEX Philippines Ltd.


c/o Atty. Maria Farah Z.G.
Nicolas-Suchianco

19th Floor Pearlbank Centre


146 Valero Street
Salcedo Village, Makati City

Atty. Maria Farah Z.G.


Nicolas-Suchianco
Resident Agent of JAPEX

Suite 2404 Discovery Centre


25 ADB Avenue
Ortigas Center, Pasig City

Philippines Ltd.
This Resolution was personally served to the above parties, at the above addresses on February 23, 2012.
On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a Motion to
Admit23 its Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to whether or not it
should deem the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as it has not
been impleaded. It also alleged that JAPEX PH had already stopped exploration activities in the Taon Strait
way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time 25 to file its
Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23, 2012, it had
until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional thirty days, supposedly
to give this Court some time to consider its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's Motion to Admit its Motion for
Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:chanroblesvirtuallawlibrary
With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court
considers JAPEX Philippines. Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3 of the
1997 Rules of Court, a 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. Contrary to JAPEX Philippines, Ltd.'s
allegation that it is a completely distinct corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd. for the purpose of
carrying out the latter's business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no
separate personality from its mother foreign corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a resident
agent of a foreign corporation:
SECTION 128. Resident agent; service of process. The Securities and Exchange Commission shall require
as a condition precedent to the issuance of the license to transact business in the Philippines by any
foreign corporation that such corporation file with the Securities and Exchange Commission a written
power of attorney designating some person who must be a resident of the Philippines, on whom any
summons and other legal processes may be served in all actions or other legal proceedings against such
corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if
served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign
corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or
stipulation, executed by the proper authorities of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted
by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any
time said corporation shall cease to transact business in the Philippines, or shall be without any resident
agent in the Philippines on whom any summons or other legal processes may be served, then in any action
or proceeding arising out of any business or transaction which occurred in the Philippines, service of any

115

summons or other legal process may be made upon the Securities and Exchange Commission and that
such service shall have the same force and effect as if made upon the duly-authorized officers of the
corporation at its home office."
Whenever such service of summons or other process shall be made upon the Securities and Exchange
Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a copy of such
summons or other legal process to the corporation at its home or principal office. The sending of such copy
by the Commission shall be a necessary part of and shall complete such service. All expenses incurred by
the Commission for such service shall be paid in advance by the party at whose instance the service is
made.
In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in
writing the Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a resident agent is to receive summons or legal
processes that may be served in all actions or other legal proceedings against the foreign corporation.
These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its
branch office and resident agent, had been receiving the various resolutions from this Court, as evidenced
by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to file its
memorandum, and was given until April 21, 2012, as prayed for, within which to comply with the
submission.27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an
additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request by
claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for filing, which
was on April 21, 2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its Memorandum
and dispensed with such filing.
Since petitioners had already filed their respective memoranda, 29 and public respondents had earlier filed a
Manifestation30 that they were adopting their Comment dated March 31, 2008 as their memorandum, this
Court submitted the case for decision.
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Taon Strait, petitioners
Resident Marine Mammals and Stewards aver that a study made after the seismic survey showed that the
fish catch was reduced drastically by 50 to 70 percent. They claim that before the seismic survey, the
average harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk could only catch
an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the "payao"
also known as the "fish aggregating device" or "artificial reef." 31Petitioners Resident Marine Mammals and
Stewards also impute the incidences of "fish kill"32observed by some of the local fisherfolk to the seismic
survey. And they further allege that the ECC obtained by private respondent JAPEX is invalid because
public consultations and discussions with the affected stakeholders, a pre-requisite to the issuance of the
ECC, were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and Stewards'
allegations of reduced fish catch and lack of public consultations or discussions with the fisherfolk and
other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during the seismic surveys
and drilling, it was barred from entering and fishing within a 7-kilometer radius from the point where the
oilrig was located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the IEE. 33 It also
agrees in the allegation that public respondents DENR and EMB abused their discretion when they issued
an ECC to public respondent DOE and private respondent JAPEX without ensuring the strict compliance
with the procedural and substantive requirements under the Environmental Impact Assessment system,
the Fisheries Code, and their implementing rules and regulations. 34 It further claims that despite several
requests for copies of all the documents pertaining to the project in Taflon Strait, only copies of the PAMBTaon Strait Resolution and the ECC were given to the fisherfolk. 35
Public Respondents' Counter-Allegations

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P

Public respondents, through the Solicitor General, contend that petitioners Resident Marine Mammals and
Stewards have no legal standing to file the present petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in the petitions; that the ECC was issued in accordance with
existing laws and regulations; that public respondents may not be compelled by mandamus to furnish
petitioners copies of all documents relating to SC-46; and that all the petitioners failed to show that they
are entitled to injunctive relief. They further contend that the issues raised in these petitions have been
rendered moot and academic by the fact that SC-46 had been mutually terminated by the parties thereto
effective June 21, 2008.36
ISSUES
The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R. No.
180771:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT PETITION;

II.

WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987 PHILIPPINE


CONSTITUTION AND STATUTES;

III.

WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR OIL AND
NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE TANON STRAIT PROTECTED
SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL
LAWS AND INSTRUMENTS; AND

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) IN


ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED SPECIES IS
LEGAL AND PROPER.37
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:chanroblesvirtuallawlibrary

I.

WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE AND JAPEX
SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE
1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;

II.

WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER SERVICE CONTRACT
NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY FOR THE PURPOSE;

III.

WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON STRAIT
PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO PETITIONERS UNDER
THE CONSTITUTION AND APPLICABLE LAWS.

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) FOR
SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA SUCH AS
THE TANON STRAIT PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS
ON THE MATTER.

V.

WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO FURNISH


PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TANON STRAIT OIL EXPLORATION
PROJECT.38
In these consolidated petitions, this Court has determined that the various issues raised by the petitioners
may be condensed into two primary issues:

I.

Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in G.R.
No. 180771; and

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Main Issue: Legality of Sendee Contract No. 46.

DISCUSSION

II.

At the outset, this Court makes clear that the '"moot and academic principle' is not a magical formula that
can automatically dissuade the courts in resolving a case." Courts have decided cases otherwise moot and
academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public interest is involved;
3) The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and
4) The case is capable of repetition yet evading review.39
In this case, despite the termination of SC-46, this Court deems it necessary to resolve these consolidated
petitions as almost all of the foregoing exceptions are present in this case. Both petitioners allege that SC46 is violative of the Constitution, the environmental and livelihood issues raised undoubtedly affect the
public's interest, and the respondents' contested actions are capable of
repetition.chanRoblesvirtualLawlibrary
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to file this
action since they stand to be benefited or injured by the judgment in this suit. 40 Citing Oposa v. Factoran,
Jr.,41 they also assert their right to sue for the faithful performance of international and municipal
environmental laws created in their favor and for their benefit. In this regard, they propound that they
have the right to demand that they be accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be no question of their right to represent the
Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build
awareness among the affected residents of Taon Strait and as stewards of the environment since the
primary steward, the Government, had failed in its duty to protect the environment pursuant to the public
trust doctrine.43
Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the benchmark
in locus standi as an exercise of epistolary jurisdiction.44
In opposition, public respondents argue that the Resident Marine Mammals have no standing because
Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or juridical
persons, viz.:chanroblesvirtuallawlibrary
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners therein
were all natural persons, albeit some of them were still unborn. 45
As regards the Stewards, the public respondents likewise challenge their claim of legal standing on the
ground that they are representing animals, which cannot be parties to an action. Moreover, the public
respondents argue that the Stewards are not the real parties-in-interest for their failure to show how they
stand to be benefited or injured by the decision in this case. 46
Invoking the alter ego principle in political law, the public respondents claim that absent any proof that

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former President Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts
remain to be her own.47

The public respondents contend that since petitioners Resident Marine Mammals and Stewards' petition
was not brought in the name of a real party-in-interest, it should be dismissed for failure to state a cause of
action.48
The issue of whether or not animals or even inanimate objects should be given legal standing in actions
before courts of law is not new in the field of animal rights and environmental law. Petitioners Resident
Marine Mammals and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B.
Morton,49 wherein Justice William O. Douglas, dissenting to the conventional thought on legal standing,
opined:
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal
rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name
of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where
injury is the subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful
for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary
and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory
processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of
trees, swampland, or even air that feels the destructive pressures of modern technology and modem life.
The river, for example, is the living symbol of all the life it sustains or nourishesfish, aquatic insects,
water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or
who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that
is part of it. Those people who have a meaningful relation to that body of waterwhether it be a
fisherman, a canoeist, a zoologist, or a loggermust be able to speak for the values which the river
represents and which are threatened with destruction.50(Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to give animals and inanimate
objects standing is due to the need to comply with the strict requirements in bringing a suit to court. Our
own 1997 Rules of Court demand that parties to a suit be either natural or juridical persons, or entities
authorized by law. It further necessitates the action to be brought in the name of the real party-in-interest,
even if filed by a representative, viz.:
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A 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. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party in interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A representative may be a trustee of an express
trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent
acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal.
It had been suggested by animal rights advocates and environmentalists that not only natural and juridical
persons should be given legal standing because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of these animals or inanimate

119

objects. For this reason, many environmental cases have been dismissed for failure of the petitioner to
show that he/she would be directly injured or affected by the outcome of the case. However, in our
jurisdiction, locus standi in environmental cases has been given a more liberalized approach. While
developments in Philippine legal theory and jurisprudence have not progressed as far as Justice Douglas's
paradigm of legal standing for inanimate objects, the current trend moves towards simplification of
procedures and facilitating court access in environmental cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,51 which allow
for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of our
environmental laws:
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a
brief description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff
may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for
Environmental Cases, commented:
Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing
environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed
enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The terminology of the text reflects the doctrine first
enunciated in Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.53(Emphasis
supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for
Environmental Cases, it has been consistently held that rules of procedure "may be retroactively applied to
actions pending and undetermined at the time of their passage and will not violate any right of a person
who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure." 54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations
Commission55 held that:
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take
away vested rights, but only operate in furtherance of the remedy or confirmation of rights already
existing, do not come within the legal conception of a retroactive law, or the general rule against
retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their passage. Procedural laws are
retroactive in that sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental Cases became effective, this Court had
already taken a permissive position on the issue of locus standi in environmental cases. InOposa, we
allowed the suit to be brought in the name of generations yet unborn "based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned."56 Furthermore, we said that the right to a balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from impairing the environment. 57
In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce
our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition
and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio,

120

having shown in their petition that there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal standing to file this
petition.chanRoblesvirtualLawlibrary
Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President Gloria
Macapagal-Arroyo for the following reasons, which we quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacaang
Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent President of the
Philippine Islands. She is personally impleaded in this suit as an unwilling co-petitioner by reason of her
express declaration and undertaking under the recently signed ASEAN Charter to protect Your Petitioners'
habitat, among others. She is meantime dominated as an unwilling co-petitioner due to lack of material
time in seeking her signature and imprimatur hereof and due to possible legal complications that may
hereafter arise by reason of her official relations with public respondents under the alter ego principle in
political law.58cralawlawlibrary
This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be
obtained, he or she may be made a party defendant to the case. This will put the unwilling party under the
jurisdiction of the Court, which can properly implead him or her through its processes. The unwilling party's
name cannot be simply included in a petition, without his or her knowledge and consent, as such would be
a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-Arroyo in
their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the former President
as an unwilling co-petitioner, for an act she made in the performance of the functions of her office, is
contrary to the public policy against embroiling the President in suits, "to assure the exercise of
Presidential duties and functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands
undivided attention."59
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit.
Thus, her name is stricken off the title of this case.chanRoblesvirtualLawlibrary
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2, Article
XII of the 1987 Constitution because JAPEX is 100% Japanese-owned. 60 Furthermore, the FIDEC asserts that
SC-46 cannot be considered as a technical and financial assistance agreement validly executed under
paragraph 4 of the same provision.61 The petitioners claim that La Bugal-B'laan Tribal Association, Inc. v.
Ramos62 laid down the guidelines for a valid service contract, one of which is that there must exist a
general law for oil exploration before a service contract may be entered into by the Government. The
petitioners posit that the service contract in La Bugal is presumed to have complied with the requisites of
(a) legislative enactment of a general law after the effectivity of the 1987 Constitution (such as Republic
Act No. 7942, or the Philippine Mining Law of 1995, governing mining contracts) and (b) presidential
notification. The petitioners thus allege that the ruling in La Bugal, which involved mining contracts under
Republic Act No. 7942, does not apply in this case.63 The petitioners also argue that Presidential Decree No.
87 or the Oil Exploration and Development Act of 1972 cannot legally justify SC-46 as it is deemed to have
been repealed by the 1987 Constitution and subsequent laws, which enunciate new policies concerning the

121

environment.64In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2,
Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our natural
resources,65 and paragraph 4 does not speak of service contracts but of FTAAs or Financial Technical
Assistance Agreements.66
The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not violate
Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the coverage of
paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs.
They also insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are
not applicable to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it
otherwise impinge on the FIDEC's right to preferential use of communal marine and fishing resources. 67
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be
for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the development and use of local scientific and
technical resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987
Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions
of the deliberations of the members of the Constitutional Commission (ConCom) to show that in
deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as
understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses
prevalent during the martial law regime, to wit:
Summation of the ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations,
as follows:

122
P

In their deliberations on what was to become paragraph 4, the framers used the termservice contracts in
referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicateservice contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize
the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts
with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to
the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or
limits to Filipino citizens and corporations at least 60 percent of which is owned by such citizens the
exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign
investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered adequate
and reasonable. But some of them, having more "radical" leanings, wanted to ban service contracts
altogether; for them, the provision would permit aliens to exploit and benefit from the nation's natural
resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the
provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony including paragraph 4 allowing
service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section 2
of the same article was resoundingly approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical Or Financial Assistance Are Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or
financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial expertise in the creation
and operation of large-scale mining/extractive enterprises; and the government, through its agencies
(DENR, MGB), actively exercises control and supervision over the entire operation. 68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are
the safeguards this Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform
terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an agreement is
presented to the President for signature, it will have been vetted several times over at different levels to
ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that
branch of government an opportunity to look over the agreement and interpose timely objections, if
any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987 Constitution.

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1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of
1972. This was enacted by then President Ferdinand Marcos to promote the discovery and production of
indigenous petroleum through the utilization of government and/or local or foreign private resources to
yield the maximum benefit to the Filipino people and the revenues to the Philippine Government. 70
Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to
wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed,
or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly by
Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government Code of
1991, expressly repealed a number of laws, including a specific provision in Presidential Decree No.
87, viz.:
SECTION 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; Section 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. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. As we held in Villarea v. The Commission on Audit,71 "[i]mplied
repeals are not lightly presumed." It is a settled rule that when laws are in conflict with one another, every
effort must be exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining
Corporation,72 we said:
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare
leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with
other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not have enacted conflicting statutes.

124

Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to
harmonize and give effect to all laws on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction that
it is in harmony with the Constitution is also possible, that construction should be preferred. 73This Court,
in Pangandaman v. Commission on Elections74 expounding on this point, pronounced:
It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that there
is no general law prescribing the standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be authorized, as will be
discussed below, the exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Taon Strait is a NIPAS 75 area.
2. President was not the signatory to SC-46 and the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general
law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress
be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987 Constitution. The Civil Code provides:
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or
public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held that:
It is basic that the law is deemed written into every contract. Although a contract is the law between the
parties, the provisions of positive law which regulate contracts are deemed written therein and shall limit
and govern the relations between the parties, x x x. (Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and
signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither shown nor alleged that Congress was
subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego principle," their acts are also that of
then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres,77 we explained the concept
of the alter ego principle or the doctrine of qualified political agency and its limit in this wise:
Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis
ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained
in La Bugal, they are the safeguards put in place by the framers of the Constitution to "eliminate or

125

minimize the abuses prevalent during the martial law regime."78 Thus, they are not just mere formalities,
which will only render a contract unenforceable but not void, if not complied with. They are requirements
placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will nullify
the contract. Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,79 held:
A constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a
system of government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect.
Thus,since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of
service agreements with foreign-owned corporations involving the exploration, development, and
utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly.
In this case, the public respondents have failed to show that the President had any participation in SC-46.
Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of
her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts
is embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving
the exploitation, development, and utilization of our natural resources are of paramount interest to the
present and future generations. Hence, safeguards were put in place to insure that the guidelines set by
law are meticulously observed and likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has authorized or approved of these service
contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the
DOE, obtain the President's approval for the execution of any contract under said statute, as shown in the
following provision:chanroblesvirtuallawlibrary
SECTION 5. Execution of contract authorized in this Act. - Every contract herein authorized shall, subject to
the approval of the President, be executed by the Petroleum Board created in this Act, after due public
notice pre-qualification and public bidding or concluded through negotiations. In case bids are requested or
if requested no bid is submitted or the bids submitted are rejected by the Petroleum Board for being
disadvantageous to the Government, the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for petroleum operations, any of the following
alternative procedures may be resorted to by the Petroleum Board, subject to prior approval of the
President [.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or
subordinate official has been authorized by the President to enter into such service contract for the
government. Otherwise, it should be at least shown that the President subsequently approved of such
contract explicitly. None of these circumstances is evident in the case at bar.chanRoblesvirtualLawlibrary
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the Wildlife
Resources Conservation and Protection Act, which bans all marine exploration and exploitation of oil and
gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the National Integrated Protected
Areas System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for the purpose of
information-gathering, has been repealed by Section 27 of Republic Act No. 9147. The said petitioners
further claim that SC-46 is anathema to Republic Act No. 8550 or the Philippine Fisheries Code of 1998,
which protects the rights of the fisherfolk in the preferential use of municipal waters, with the exception

126

being limited only to research and survey activities.80

The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIPAS Act, the
gathering of information must be in accordance with a DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a general law passed by Congress expressly for that
purpose. Since there is neither a DENR-approved program nor a general law passed by Congress, the
seismic surveys and oil drilling operations were all done illegally. 81 The FIDEC likewise contends that SC-46
infringes on its right to the preferential use of the communal fishing waters as it is denied free access
within the prohibited zone, in violation not only of the Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social justice.82 Furthermore, the FIDEC believes that the
provisions in Presidential Decree No. 87, which allow offshore drilling even in municipal waters, should be
deemed to have been rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act
No. 7160, which reiterate the social justice provisions of the Constitution. 83
The public respondents invoke the rules on statutory construction and argue that Section 14 of the NIPAS
Act is a more particular provision and cannot be deemed to have been repealed by the more general
prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which SC-46 falls,
should instead be regarded as an exemption to Section 27.84
Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic
Act No. 9147, the public respondents assert that what the section prohibits is the exploration of minerals,
which as defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothermal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply.85
The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing rights
to JAPEX; hence, it does not violate the rule on preferential use of municipal waters. Moreover, they allege
that JAPEX has not banned fishing in the project area, contrary to the FIDEC's claim. The public
respondents also contest the attribution of the declining fish catch to the seismic surveys and aver that the
allegation is unfounded. They claim that according to the Bureau of Fisheries and Aquatic Resources' fish
catch data, the reduced fish catch started in the 1970s due to destructive fishing practices. 86
Ruling of the Court
On the legality of Service Contract No. 46 vis-a-vis Other Laws
Although we have already established above that SC-46 is null and void for being violative of the 1987
Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to serve as a
guide for the Government when executing service contracts involving not only the Taon Strait, but also
other similar areas. While the petitioners allege that SC-46 is in violation of several laws, including
international ones, their arguments focus primarily on the protected status of the Taon Strait, thus this
Court will concentrate on those laws that pertain particularly to the Taon Strait as a protected seascape.
The Taon Strait is a narrow passage of water bounded by the islands of Cebu in the East and Negros in the
West. It harbors a rich biodiversity of marine life, including endangered species of dolphins and whales. For
this reason, former President Fidel V. Ramos declared the Taon Strait as a protected seascape in 1998 by
virtue of Proclamation No. 1234 - Declaring the Taon Strait situated in the Provinces of Cebu, Negros
Occidental and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be known as
Taon Strait Protected Seascape. During former President Joseph E. Estrada's time, he also constituted the
Taon Strait Commission via Executive Order No. 76 to ensure the optimum and sustained use of the
resources in that area without threatening its marine life. He followed this with Executive Order No.
177,87 wherein he included the mayor of Negros Occidental Municipality/City as a member of the Taon
Strait Commission, to represent the LGUs concerned. This Commission, however, was subsequently
abolished in 2002 by then President Gloria Macapagal-Arroyo, via Executive Order No. 72. 88
True to the constitutional policy that the "State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature," 89 Congress enacted the
NIPAS Act to secure the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas. These areas possess common ecological values that
were incorporated into a holistic plan representative of our natural heritage. The system encompasses
outstandingly remarkable areas and biologically important public lands that are habitats of rare and

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endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland, or marine.90 It classifies and administers all the designated protected areas to maintain
essential ecological processes and life-support systems, to preserve genetic diversity, to ensure
sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent
possible.91 The following categories of protected areas were established under the NIPAS
Act:chanroblesvirtuallawlibrary
a.

Strict nature reserve;

b.

Natural park;

c.

Natural monument;

d.

Wildlife sanctuary;

e.

Protected landscapes and seascapes;

f.

Resource reserve;

g.

Natural biotic areas; and

h.

Other categories established by law, conventions or international agreements which the Philippine
Government is a signatory.92
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and water, set aside due to
their unique physical and biological significance, managed to enhance biological diversity and protected
against human exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area under
the category of Protected Seascape. The NIPAS Act defines a Protected Seascape to be an area of national
significance characterized by the harmonious interaction of man and land while providing opportunities for
public enjoyment through recreation and tourism within the normal lifestyle and economic activity of this
areas;93 thus a management plan for each area must be designed to protect and enhance the permanent
preservation of its natural conditions.94 Consistent with this endeavor is the requirement that an
Environmental Impact Assessment (EIA) be made prior to undertaking any activity outside the scope of the
management plan. Unless an ECC under the EIA system is obtained, no activity inconsistent with the goals
of the NIPAS Act shall be implemented.95
The Environmental Impact Statement System (EISS) was established in 1978 under Presidential Decree No.
1586. It prohibits any person, partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC issued by the President or his duly
authorized representative.96 Pursuant to the EISS, which called for the proper management of
environmentally critical areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of
projects to be considered as environmentally critical and within the scope of the EISS, while DENR
Administrative Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area delineated as
environmentally sensitive such that significant environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or implemented in it"; 99 thus, before a project,
which is "any activity, regardless of scale or magnitude, which may have significant impact on the
environment,"100 is undertaken in it, such project must undergo an EIA to evaluate and predict the likely
impacts of all its stages on the environment.101 An EIA is described in detail as follows:
h.

Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the likely
impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment
and the community's welfare. The process is undertaken by, among others, the project proponent

128

and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders. 102

Under Proclamation No. 2146, the Taon Strait is an environmentally critical area, having been
declared as a protected area in 1998; therefore, any activity outside the scope of its
management plan may only be implemented pursuant to an ECC secured after undergoing an
EIA to determine the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in obtaining an ECC 103 and that
SC-46 falls under the exceptions in Section 14 of the NIPAS Act, due to the following reasons:
1) The Taon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on possible energy resources; and
3) Measures are undertaken to ensure that the exploration is being done with the least damage to
surrounding areas.104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of
the management plan for protected areas shall be subject to an environmental impact assessment as
required by law before they are adopted, and the results thereof shall be taken into consideration in the
decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out
in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2 hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of energy resources
found within NIPAS areas shall be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not without exceptions. However, while an
exploration done for the purpose of surveying for energy resources is allowed under Section
14 of the NIPAS Act, this does not mean that it is exempt from the requirement to undergo an
EIA under Section 12. In Sotto v. Sotto,105 this Court explained why a statute should be construed as a
whole:
A statute is passed as a whole and not in parts or sections and is animated by one general purpose and
intent. Consequently each part or section should be construed in connection with every other part or
section and so as to produce a harmonious whole. It is not proper to confine the attention to the one
section to be construed. It is always an unsafe way of construing a statute or contract to divide it by a
process of etymological dissection, into separate words, and then apply to each, thus separated from its
context, some particular definition given by lexicographers, and then reconstruct the instrument upon the
basis of these definitions. An instrument must always be construed as a whole, and the particular meaning
to be attached to any word or phrase is usually to be ascertained from the context, the nature of the
subject treated of and the purpose or intention of the parties who executed the contract, or of the body
which enacted or framed the statute or constitution, x x x.
Surveying for energy resources under Section 14 is not an exemption from complying with the
EIA requirement in Section 12; instead, Section 14 provides for additional requisites before
any exploration for energy resources may be done in protected areas.

129

The rationale for such additional requirements are incorporated in Section 2 of the NIPAS Act, to
wit:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all components
of the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement amd recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the
State to secure for the Filipino people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of this area is possible only through cooperation among national government, local
government and concerned private organizations; that the use and enjoyment of these protected areas
must be consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall
encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare
and endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the second
sub-phase of SC-46, which required the drilling of an oil exploration well. This means that when the seismic
surveys were done in the Taon Strait, no such environmental impact evaluation was done. Unless seismic
surveys are part of the management plan of the Taon Strait, such surveys were dona in violation of
Section 12 of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which provides:
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of government personnel, and
their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or protective measures against
calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot and will
not cure this violation. The following penalties are provided for under Presidential Decree No. 1586 and the
NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC
requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this
Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the
standards, rules and regulations issued by the National Environmental Protection Council pursuant to this
Decree shall be punished by the suspension or cancellation of his/its certificates and/or a fine in
an amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the
discretion of the National Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the Department
pursuant to this Act or whoever is found guilty by a competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less than Five thousand pesos (P5,000) nor
more than Five hundred thousand pesos (P500,000), exclusive of the value of the thing

130

damaged or imprisonment for not less than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the area requires rehabilitation or
restoration as determined by the court, the offender shall be required to restore or
compensate for the restoration to the damages: Provided, further, that court shall order the
eviction of the offender from the land and the forfeiture in favor of the Government of all
minerals, timber or any species collected or removed including all equipment, devices and
firearms used in connection therewith, and any construction or improvement made thereon by
the offender. If the offender is an association or corporation, the president or manager shall be directly
responsible for the act of his employees and laborers: Provided, finally, that the DENR may impose
administrative fines and penalties consistent with this Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy
resources in the Taon Strait as it also provides for the parties' rights and obligations relating to extraction
and petroleum production should oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law upon which a service contract for
petroleum exploration and extraction may be authorized, the exploitation and utilization of
this energy resource in the present case may be allowed only through a law passed by
Congress, since the Taon Strait is a NIPAS area.106Since there is no such law specifically
allowing oil exploration and/or extraction in the Taon Strait, no energy resource exploitation
and utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other issues
raised in these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No. 46 is
hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1586.
SO ORDERED.

CROP LIFE PHILIPPINES, INC., Petitioner-inIntervention.


G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF
THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, BUREAU OF PLANT
INDUSTRY AND FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF
APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO
SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO,
DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, RESPONDENTS. CROP
LIFE PHILIPPINES, INC. Petitioner-inIntervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS
BANOS FOUNDATION,
INC., Petitioner, v. GREENPEACE SOUTHEAST
ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOHOY

131

INTERNATIONAL SERVICE FOR THE


ACQUISITION OF AGRI-BIOTECH
APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST
ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO
CASIO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.

G.R. No. 209271, December 08, 2015

MAGAWAY, DR. ROMEO QUIJANO, DR.


WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE
PHILIPPINES, Petitioner, v. GREENPEACE
SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO,
DR. WENCESLAO KIAT, ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the
reversal of the Decision1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the
Court of Appeals (CA) in CA-G.R. SP No. 00013
which permanently enjoined the conduct of field
trials for genetically modified eggplant.
The Parties
Respondent Greenpeace Southeast Asia
(Philippines) is the Philippine branch of
Greenpeace Southeast Asia, a regional office of
Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental
environmental organization which operates in
over 40 countries and with an international
coordinating body in Amsterdam, Netherlands. It
is well known for independent direct actions in
the global campaign to preserve the environment
and promote peace.
Petitioner International Service for the Acquisition
of Agri-Biotech Applications, Inc. (ISAAA) is an
international non-profit organization founded in
1990 "to facilitate the acquisition and transfer of
agricultural biotechnology applications from the
industrial countries, for the benefit of resourcepoor farmers in the developing world" and
ultimately "to alleviate hunger and poverty in the

Respondent Magsasaka at Siyentipiko sa


Pagpapaunlad ng Agrikultura (MASIPAG) is a
coalition of local farmers, scientists and NGOs
working towards "the sustainable use and
management of biodiversity through farmers'
control of genetic and biological resources,
agricultural production, and associated
knowledge."
The University of the Philippines Los Bafios
(UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally
established as the UP College of Agriculture. It is
the center of biotechnology education and
research in Southeast Asia and home to at least
four international research and extension centers.
Petitioner UPLB Foundation, Inc. (UPLBFI) is a
private corporation organized "to be an
instrument for institutionalizing a rational system
of utilizing UPLB expertise and other assets for
generating additional revenues and other
resources needed by [UPLB]". Its main purpose is
to assist UPLB in "expanding and optimally
utilizing its human, financial, and material
resources towards a focused thrust in agriculture,
biotechnology, engineering and environmental
sciences and related academic programs and
activities." A memorandum of agreement
between UPLBFI and UPLB allows the former to
use available facilities for its activities and the
latter to designate from among its staff such
personnel needed by projects.5
Petitioner University of the Philippines (UP) is an
institution of higher learning founded in 1908.
Under its new charter, Republic Act
9500,6 approved on April 29, 2008 by President
Gloria Macapagal-Arroyo, UP was declared as the
national university tasked "to perform its unique
and distinctive leadership in higher education and
development." Among others, UP was mandated
to "serve as a research university in various fields
of expertise and specialization by conducting
basic and applied research and development, and
promoting research in various colleges and
universities, and contributing to the
dissemination and application of knowledge."7
The other individual respondents are Filipino
scientists, professors, public officials and ordinary
citizens invoking their constitutionally guaranteed
right to health and balanced ecology, and suing
on their behalf and on behalf of future
generations of Filipinos.

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developing countries." Partly funded by the


United States Agency for International
Development (USAID), ISAAA promotes the use of
agricultural biotechnology, such as genetically
modified organisms (GMOs).4

Factual Background
Biotechnology is a multi-disciplinary field which
may be defined as "any technique that uses living
organisms or substances from those organisms to
make or modify a product, to improve plants or
animals, or to develop microorganisms for
specific uses."8 Its many applications include
agricultural production, livestock, industrial
chemicals and pharmaceuticals.
In 1979, President Ferdinand Marcos approved
and provided funding for the establishment of the
National Institute for Applied Microbiology and
Biotechnology (BIOTECH) at UPLB. It is the
premier national research and development (R &
D) institution applying traditional and modern
biotechnologies in innovating products,
processes, testing and analytical services for
agriculture, health, energy, industry and
development.9
In 1990, President Corazon C. Aquino signed
Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the
Philippines (NCBP). NCBP was tasked, among
others, to "identify and evaluate potential
hazards involved in initiating genetic engineering
experiments or the introduction of new species
and genetically engineered organisms and
recommend measures to minimize risks" and to
"formulate and review national policies and
guidelines on biosafety, such as the safe conduct
of work on genetic engineering, pests and their
genetic materials for the protection of public
health, environment and personnel and supervise
the implementation thereof."
In 1991, NCBP formulated the Philippine Biosafety
Guidelines, which governs the regulation of the
importation or introduction, movement and field
release of potentially hazardous biological
materials in the Philippines. The guidelines also
describe the required physical and biological
containment and safety procedures in handling
biological materials. This was followed in 1998 by
the "Guidelines on Planned Release of Genetically
Manipulated Organisms (GMOs) and Potentially
Harmful Exotic Species (PHES)."10
On December 29, 1993, the Convention on
Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern
biotechnology has great potential for human wellbeing if developed and used with adequate safety
measures for the environment and human
health." Its main objectives, as spelled out in
Article 1, are the "conservation of biological
diversity, the sustainable use of its components
and the fair and equitable sharing of the benefits

On May 24, 2000, the Philippines signed the


Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the
Philippine Senate adopted Senate Resolution No.
92 or the "Resolution Concurring in the
Ratification of the Cartagena Protocol on
Biosafety (CPB) to the UN Convention on
Biological Diversity."
On July 16, 2001, President Gloria MacapagalArroyo issued a policy statement reiterating the
government policy of promoting the safe and
responsible use of modern biotechnology and its
products as one of several means to achieve and
sustain food security, equitable access to health
services, sustainable and safe environment and
industry development.11
In April 2002, the Department of Agriculture (DA)
issued DA-Administrative Order (AO) No. 08
providing rules and regulations for the
importation and release into the environment of
plants and plant products derived from the use of
modem biotechnology.
DAO-08-2002 covers the importation or release
into the environment of: (1) any plant which has
been altered or produced through the use of
modem biotechnology if the donor organism, host
organism, or vector or vector agent belongs to
the genera or taxa classified by the Bureau of
Plant Industry (BPI) as meeting the definition of
plant pest or is a medium for the introduction of
noxious weeds; or (2) any plant or plant product
altered through the use of modem biotechnology
which may pose significant risks to human health
and the environment based on available scientific
and technical information.
The country's biosafety regulatory system was
further strengthened with the issuance of EO No.
514 (EO 514) on March 17, 2006, "Establishing
the National Biosafety Framework (NBF),
Prescribing Guidelines for its Implementation,
and Strengthening the NCBP." The NBF shall
apply to the development, adoption and

133

In January 2000, an agreement was reached on


the Cartagena Protocol on Biosafety (Cartagena
Protocol), a supplemental to the CBD. The
Cartagena Protocol aims "to contribute to
ensuring an adequate level of the safe transfer,
handling and use of living modified organisms
resulting from modern biotechnology that may
have adverse effects on the conservation and
sustainable use of biological diversity, taking into
account risks to human health, and specifically
focusing on transboundary movements."

arising out of the utilization of genetic resources."

implementation of all biosafety policies,


measures and guidelines and in making decisions
concerning the research, development, handling
and use, transboundary movement, release into
the environment and management of regulated
articles.12
EO 514 expressly provides that, unless amended
by the issuing departments or agencies, DAO 082002, the NCBP Guidelines on the Contained Use
of Genetically Modified Organisms, except for
provisions on potentially harmful exotic species
which were repealed, and all issuances of the
Bureau of Food and Drugs Authority (FDA) on
products of modem biotechnology, shall continue
to be in force and effect.13
On September 24, 2010, a Memorandum of
Undertaking14 (MOU) was executed between
UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research
and development project on eggplants that are
resistant to the fruit and shoot borer. Other
partner agencies involved in the project were
UPLB through its Institute of Plant Breeding,
Maharastra Hybrid Seed Company (MAHYCO) of
India, Cornell University and the Agricultural
Biotechnology Support Project II (ABSPII) of US
AID.
As indicated in the Field Trial Proposal 15 submitted
by the implementing institution (UPLB), the pestresistant crop subject of the field trial was
described as a "bioengineered eggplant." The
crystal toxin genes from the soil
bacterium Bacillus thuringiensis (Bt) were
incorporated into the eggplant (talong) genome
to produce the protein CrylAc which is toxic to the
target insect pests. CrylAc protein is said to be
highly specific to lepidopteran larvae such as the
fruit and shoot borer (FSB), the most destructive
insect pest of eggplant.
Under the regulatory supervision of NCBP, a
contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP
thus issued a Certificate of Completion of
Contained Experiment stating that "During the
conduct of the experiment, all the biosafety
measures have been complied with and no
untoward incident has occurred."16
BPI issued Biosafety Permits17 to UPLB on March
16, 2010 and June 28, 2010. Thereafter, field
testing of Bt talong commenced on various dates
in the following approved trial sites: Kabacan,
North Cotabato; Sta. Maria, Pangasinan; Pili,
Camarines Sur; Bago Oshiro, Davao City; and
Bay, Laguna.

Greenpeace, et al. further claimed that the Bt


talong field test project did not comply with the
required public consultation under Sections 26 &
27 of theLocal Government Code, A random
survey by Greenpeace on July 21, 2011 revealed
that ten households living in the area
immediately around the Bt talong experimental
farm in Bay, Laguna expressed lack of knowledge
about the field testing in their locality.
The Sangguniang Barangay of Pangasugan in
Baybay, Leyte complained about the lack of

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On April 26, 2012, Greenpeace, MASIPAG and


individual respondents (Greenpeace, et al.) filed a
petition for writ of kalikasan and writ of
continuing mandamus with prayer for the
issuance of a Temporary Environmental Protection
Order (TEPO). They alleged that the Bt
talong field trials violate their constitutional right
to health and a balanced ecology considering that
(1) the required environmental compliance
certificate under Presidential Decree (PD) No.
1151 was not secured prior to the project
implementation; (2) as a regulated article under
DAO 08-2002, Bt talong is presumed harmful to
human health and the environment, and there is
no independent, peer-reviewed study on the
safety of Bt talong for human consumption and
the environment; (3) a study conducted by
Professor Gilles-Eric Seralini showed adverse
effects on rats who were fed Bt corn, while local
scientists also attested to the harmful effects of
GMOs to human and animal health; (4) Bt crops
can be directly toxic to non-target species as
highlighted by a research conducted in the US
which demonstrated that pollen from Bt maize
was toxic to the Monarch butterfly; (5) data from
the use of Bt CrylAb maize indicate that beneficial
insects have increased mortality when fed on
larvae of a maize pest, the corn borer, which had
been fed on Bt, and hence non-target beneficial
species that may feed on eggplant could be
similarly affected; (6) data from China show that
the use of Bt crops (Bt cotton) can exacerbate
populations of other secondary pests; (7) the
built-in pesticides of Bt crops will lead
to Bt resistant pests, thus increasing the use of
pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter
pollen trap area in the field testing area set by
BPI is not sufficient to stop contamination of
nearby non-Bt eggplants because pollinators such
as honeybees can fly as far as four kilometers
and an eggplant is 48% insect-pollinated. The full
acceptance by the project proponents of the
findings in the MAHYCO Dossier was strongly
assailed on the ground that these do not
precisely and adequately assess the numerous
hazards posed by Bt talong and its field trial.

information on the nature and uncertainties of


the Bt talong field testing in their barangay. The
Davao City Government likewise opposed the
project due to lack of transparency and public
consultation. It ordered the uprooting
of Bt eggplants at the trial site and disposed
them strictly in accordance with protocols relayed
by the BPI through Ms. Merle Palacpac. Such
action highlighted the city government's policy on
"sustainable and safe practices." On the other
hand, the Sangguniang Bayan of Sta. Barbara,
Iloilo passed a resolution suspending the field
testing due to the following: lack of public
consultation; absence of adequate study to
determine the effect of Bt talong field testing on
friendly insects; absence of risk assessment on
the potential impacts of genetically modified (GM)
crops on human health and the environment; and
the possibility of cross-pollination of Bt eggplants
with native species or variety of eggplants, and
serious threat to human health if these products
were sold to the market.
Greenpeace, et al. argued that this case calls for
the application of the precautionary principle,
the Bt talong field testing being a classic
environmental case where scientific evidence as
to the health, environmental and socio-economic
safety is insufficient or uncertain and preliminary
scientific evaluation indicates reasonable grounds
for concern that there are potentially dangerous
effects on human health and the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary
Environment Protection Order should be issued:
(i) enjoining public respondents BPI and FPA of
the DA from processing for field testing, and
registering as herbicidal product, Bt talong in the
Philippines; (ii) stopping all pending field testing
of Bt talong anywhere in the Philippines; and (in)
ordering the uprooting of planted Bt talong for
field trials as their very presence pose significant
and irreparable risks to human health and the
environment.
b. Upon the filing [of this petition], issue a writ of
continuing mandamus commanding:
(i) Respondents to submit to and undergo the
process of environmental impact statement
system under the Environmental Management
Bureau;
(ii) Respondents to submit independent,
comprehensive, and rigid risk assessment, field
tests report, regulatory compliance reports and
supporting documents, and other material
particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued

(iv) Respondent regulator, in coordination with


relevant government agencies and in
consultation with stakeholders, to submit an
acceptable draft of an amendment of the National
Bio-Safety Framework of the Philippines, and DA
Administrative Order No. 08, defining or
incorporating an independent, transparent, and
comprehensive scientific and socio-economic risk
assessment, public information, consultation, and
participation, and providing for their effective
implementation, in accord with international
safety standards; and,
(v) Respondent BPI of the DA, in coordination with
relevant government agencies, to conduct
balanced nationwide public information on the
nature of Bt talong and Bt talong field trial, and a
survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ
of kalikasan commanding Respondents to file
their respective returns and explain why they
should not be judicially sanctioned for violating or
threatening to violate or allowing the violation of
the above-enumerated laws, principles, and
international principle and standards, or
committing acts, which would result into an
environmental damage of such magnitude as to
prejudice the life, health, or property of
petitioners in particular and of the Filipino people
in general.
d. After hearing and judicial determination, to
cancel all Bt talong field experiments that are
found to be violating the abovementioned laws,
principles, and international standards; and
recommend to Congress curative legislations to
effectuate such
order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ
of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and
Pesticide Authority (FPA) and UPLB,18-a ordering
them to make a verified return within a nonextendible period often (10) days, as provided in
Sec. 8, Rule 7 of the Rules of Procedure for
Environmental Cases.19
ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their
respective verified returns. They all argued that
the issuance of writ of kalikasan is not proper
because in the implementation of the Bt
talong project, all environmental laws were
complied with, including public consultations in
the affected communities, to ensure that the

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certifications on public information, public


consultation, public participation, and consent of
the local government units in the barangays,
municipalities, and provinces affected by the field
testing of Bt talong;

people's right to a balanced and healthful ecology


was protected and respected. They also asserted
that the Bt talongproject is not covered by the
Philippine Environmental Impact Statement (PEIS)
Law and that Bt talong field trials will not
significantly affect the quality of the environment
nor pose a hazard to human health. ISAAA
contended that the NBF amply safeguards the
environment policies and goals promoted by the
PEIS Law. On its part, UPLBFI asserted that there
is a "plethora of scientific works and literature,
peer-reviewed, on the safety of Bt talong for
human consumption."20 UPLB, which filed an
Answer21 to the petition before the CA, adopted
said position of UPLBFI.
ISAAA argued that the allegations regarding the
safety of Bt talong as food are irrelevant in the
field trial stage as none of the eggplants will be
consumed by humans or animals, and all
materials that will not be used for analyses will be
chopped, boiled and buried following the
Biosafety Permit requirements. It cited a 50-year
history of safe use and consumption of
agricultural products sprayed with
commercial Bt microbial pesticides and a 14-year
history of safe consumption of food and feed
derived from Bt crops. Also mentioned is the
almost 2 million hectares of land in the
Philippines which have been planted with Bt corn
since 2003, and the absence of documented
significant and negative impact to the
environment and human health. The statements
given by scientists and experts in support of the
allegations of Greenpeace, et al. on the safety
of Bt corn was also addressed by citing the
contrary findings in other studies which have
been peer-reviewed and published in scientific
journals.
On the procedural aspect, ISAAA sought the
dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts
and the allegations therein being mere assertions
and baseless conclusions of law. EMB, BPI and
FPA questioned the legal standing of Greenpeace,
et al. in filing the petition for writ of kalikasan as
they do not stand to suffer any direct injury as a
result of the Bt talong field tests. They likewise
prayed for the denial of the petition for
continuing mandamus for failure to state a cause
of action and for utter lack of merit.
UPMFI also questioned the legal standing of
Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their
constitutional rights to health and a balanced
ecology were violated or threatened to be
violated by the conduct of Bt talong field trials.
Insofar as the field trials in Davao City, the actual

Finally, it is argued that the precautionary


principle is not applicable considering that the
field testing is only a part of a continuing study
being done to ensure that the field trials have no
significant and negative impact on the
environment. There is thus no resulting
environmental damage of such magnitude as to
prejudice the life, health, property of inhabitants
in two or more cities or provinces. Moreover, the
issues raised by Greenpeace, et al. largely involve
technical matters which pertain to the special
competence of BPI whose determination thereon
is entitled to great respect and even finality.
By Resolution dated July 10, 2012, the Court
referred this case to the CA for acceptance of the
return of the writ and for hearing, reception of
evidence and rendition of judgment.22
CA Proceedings and Judgment
At the preliminary conference held on September
12, 2012, the parties submitted the following
procedural issues: (1) whether or not
Greenpeace, et al. have legal standing to file the
petition for writ of kalikasan; (2) whether or not
said petition had been rendered moot and
academic by the alleged termination of the Bt
talong field testing; and (3) whether or not the
case presented a justiciable controversy.
Under Resolution23 dated October 12, 2012, the
CA resolved that: (1) Greenpeace, et al. possess
the requisite legal standing to file the petition for
writ ofkalikasan; (2) assuming arguendo that the
field trials have already been terminated, the
case is not yet moot since it is capable of

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field trials at Bago Oshiro started on November


25, 2010 but the plants were uprooted by Davao
City officials on December 17-18, 2010. There
were no further field trials conducted and hence
no violation of constitutional rights of persons or
damage to the environment, with respect to
Davao City, occurred which will justify the
issuance of a writ of kalikasan. UPMFI emphasized
that under the MOU, its responsibility was only to
handle the funds for the project in their trial site.
It pointed out that in the Field Trial Proposal,
Public Information Sheet, Biosafety Permit for
Field Testing, and Terminal Report (Davao City
Government) by respondent Leonardo R. Avila III,
nowhere does UPMFI appear either as project
proponent, partner or implementing arm. Since
UPMFI, which is separate and distinct from UP,
undertook only the fund management of Bt
talong field test project the duration of which
expired on July 1, 2011, it had nothing to do with
any field trials conducted in other parts of the
country.

repetition yet evading review; and (3) the alleged


non-compliance with environmental and local
government laws present justiciable
controversies for resolution by the court.
The CA then proceeded to hear the merits of the
case, adopting the "hot-tub" method wherein the
expert witnesses of both parties testify at the
same time. Greenpeace, et al. presented the
following as expert witnesses: Dr. Ben Malayang
III (Dr. Malayang), Dr. Charito Medina (Dr.
Medina), and Dr. Tushar Chakraborty (Dr.
Chakraborty). On the opposing side were the
expert witnesses in the persons of Dr. Reynaldo
Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos),
Dr. Flerida Cario (Dr. Cario), and Dr. Peter
Davies (Dr. Davies). Other witnesses who testified
were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle
Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr.
Navasero) and Dr. Randy Hautea (Dr. Hautea).
On November 20, 2012, Biotechnology Coalition
of the Philippines, Inc. (BCPI) filed an Urgent
Motion for Leave to Intervene as Respondent.24 It
claimed to have a legal interest in the subject
matter of the case as a broad-based coalition of
advocates for the advancement of modern
biotechnology in the Philippines.
In its Resolution25 dated January 16, 2013, the CA
denied BCPI's motion for intervention stating that
the latter had no direct and specific interest in
the conduct of Bt talong field trials.
On May 17, 2013, the CA rendered a Decision in
favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by
us GRANTING the petition filed in this case. The
respondents
are DIRECTED to:chanRoblesvirtualLawlibrary
(a) Permanently cease and desist from further
conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the
environment in accordance with the foregoing
judgment of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by
the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee
the safety of the environment and health of the
people. Concurring with Dr. Malayang's view that
the government must exercise precaution "under
the realm of public policy" and beyond scientific
debate, the appellate court noted the possible

Denying the motions for reconsideration filed by


ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in
its Resolution dated September 20, 2013 rejected
the argument of UPLB that the appellate court's
ruling violated UPLB's constitutional right to
academic freedom. The appellate court pointed
out that the writ of kalikasan originally issued by
this Court did not stop research on Bt talong but
only the particular procedure adopted in doing
field trials and only at this time when there is yet
no law in the form of a congressional enactment
for ensuring its safety and levels of acceptable
risks when introduced into the open environment.
Since the writ stops the field trials of Bt talong as
a procedure but does not stop Bt talong research,
there is no assault on academic freedom.
The CA then justified its ruling by expounding on
the theory that introducing a genetically modified
plant into our ecosystem is an "ecologically
imbalancing act." Thus:
We suppose that it is of universal and general
knowledge that an ecosystem is a universe of
biotic (living) and non-biotic things interacting as
a living community in a particular space and
time. In the ecosystem are found specific and
particular biotic and non-biotic entities which
depend on each other for the biotic entities to
survive and maintain life. A critical element for
biotic entities to maintain life would be that their
populations are in a proper and natural proportion
to others so that, in the given limits of available
non-biotic entities in the ecosystem, no one
population overwhelms another. In the case of
the Philippines, it is considered as one of the
richest countries in terms of biodiversity. It has so
many plants and animals. It also has many kinds

137

After scrutinizing the parties' arguments and


evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule
20 of the Rules of Procedure for Environmental
Cases27 finds relevance in the present
controversy. Stressing the fact that the "over-all
safety guarantee of the bt talong" remains
unknown, the appellate court cited the testimony
of Dr. Cario who admitted that the product is not
yet safe for consumption because a safety
assessment is still to be done. Again, the Decision
quoted from Dr. Malayang who testified that the
question of Bt talong's safety demands maximum
precaution and utmost prudence, bearing in mind
the country's rich biodiversity. Amid the
uncertainties surrounding the Bt talong, the CA
thus upheld the primacy of the people's
constitutional right to health and a balanced
ecology.

irreversible effects of the field trials and the


introduction of Bt talong to the market.

of other living things than many countries in the


world. We do not fully know how all these living
things or creatures interact among themselves.
But, for sure, there is a perfect and sound
balance of our biodiversity as created or
brought about by God out of His infinite and
absolute wisdom. In other words, every living
creature has been in existence or has come into
being for a purpose. So, we humans are not
supposed to tamper with any one element in this
swirl of interrelationships among living things in
our ecosystem. Now, introducing a genetically
modified plant in our intricate world of
plants by humans certainly appears to be
an ecologically imbalancing act. The
damage that it will cause may be
irreparable and irreversible.
At this point, it is significant to note that during
the hearing conducted by this Court on November
20, 2012 wherein the testimonies of seven
experts were given, Dr. Peter J. Davies (Ph.D in
Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D
in Biochemistry and Molecular Biology), Dr.
Charito Medina (Ph.D in Environmental Biology),
Dr. Reginaldo Ebora (Ph.D in Entomology), Dr.
Flerida Cario (Ph.D in Insecticide Toxicology), Dr.
Ben Malayang (Ph.D in Wildland Resource
Science) and Dr. Saturnina Halos (Ph.D in
Genetics) were in unison in admitting that bt
talong is an altered plant. x x x
xxxx
Thus, it is evident and clear that bt talong is a
technology involving the deliberate alteration of
an otherwise natural state of affairs. It is
designed and intended to alter natural feedfeeder relationships of the eggplant. It is a
deliberate genetic reconstruction of the eggplant
to alter its natural order which is meant to
eliminate one feeder (the borer) in order to give
undue advantage to another feeder (the
humans). The genetic transformation is one
designed to make bt talong toxic to its pests (the
targeted organisms). In effect, bt talong kills its
targeted organisms. Consequently, the testing
or introduction of bt talong into the
Philippines, by its nature and intent, is a
grave and present danger to (and an
assault on) the Filipinos' constitutional right
to a balanced ecology because, in any book
and by any yardstick, it is an ecologically
imbalancing event or phenomenon. It is a willful
and deliberate tampering of a naturally ordained
feed-feeder relationship in our environment. It
destroys the balance of our biodiversity. Because
it violates the conjunct right of our people to a
balanced ecology, the whole constitutional right
of our people (as legally and logically construed)

Of course, the bt talong's threat to the human


health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no
Filipinos has ever eaten it yet, and so, there is no
factual evidence of it actually causing acute or
chronic harm to any or a number of ostensibly
identifiable perms, on the other hand, there is
correspondingly no factual evidence either of it
not causing harm to anyone. However, in a study
published on September 20, 2012 in "Food and
Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University
of Caen and backed by the France-based
Committee of Independent Research and
Information on Genetic Engineering came up with
a finding that rats fed with Roundup-tolerant
genetically modified corn for two years developed
cancers, tumors and multiple organ damage. The
seven expert witnesses who testified in this Court
in the hearing conducted on November 20, 2012
were duly confronted with this finding and they
were not able to convincingly rebut it. That is why
we, in deciding this case, applied the
precautionary principle in granting the petition
filed in the case at bench.

138

A.

is violated.

B.

THE COURT OF APPEALS GRAVELY ERRED IN


REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF
KALIKASAN CONSIDERING THAT RESPONDENTS
FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
IV
THE COURT OF APPEALS GRAVELY ERRED IN
REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF
KALIKASAN CONSIDERING THAT PRIMARY
JURISDICTION OVER THE SAME LIES WITH THE
REGULATORY AGENCIES.
V
THE COURT OF APPEALS EXHIBITED BIAS AND
PARTIALITY AND PREJUDGED THE INSTANT CASE
WHEN IT RENDERED THE
ASSAILEDDECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.

Petitioners' Arguments
G.R. No. 209271
ISAAA advances the following arguments in
support of its petition:
I

II
THE COURT OF APPEALS GRAVELY ERRED IN
REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF
KALIKASAN CONSIDERING THAT THE SAME
RAISES POLITICAL QUESTIONS.

WORSE, THE COURT OF APPEALS EVEN


HELD THAT THERE ARE NO LAWS GOVERNING
THE STUDY, INTRODUCTION AND USE OF GMOS
IN THE PHILIPPINES AND COMPLETELY
DISREGARDED E.O. NO. 514 AND DA- AO 082002.
III

Prescinding from the foregoing premises,


therefore, because one conjunct right in the
whole Constitutional guarantee is factually and is
undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the
Filipino people to a balanced and healthful
ecology is at risk. Hence, the issuance of the writ
of kalikasan and the continuing writ of mandamus
is justified and warranted.28 (AdditionalEmphasis
supplied.)

THE COURT OF APPEALS GRAVELY ERRED IN


REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF
KALIKASAN CONSIDERING THAT THE SAME IS
ALREADY MOOT AND ACADEMIC.

IN SEEKING TO COMPEL THE REGULATORY


AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT OF
THE AMENDMENT OF THE NATIONAL BIO-SAFETY
FRAMEWORK OF THE PHILIPPINES, AND DA
ADMINISTRATIVE ORDER NO. 08," AND IN
PRAYING THAT THE COURT OF APPEALS
"RECOMMEND TO CONGRESS CURATIVE
LEGISLATIONS," RESPONDENTS SEEK TO REVIEW
THE WISDOM OF THE PHILIPPINE REGULATORY
SYSTEM FOR GMOS, WHICH THE COURT OF
APPEALS IS WITHOUT JURISDICTION TO DO SO.

VI
THE COURT OF APPEALS GRAVELY ERRED IN
GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.
A.

THE EVIDENCE ON RECORD SHOWS THAT


THE PROJECT PROPONENTS OF THE BT TALONG
FIELD TRIALS COMPLIED WITH ALL
ENVIRONMENTAL LAWS, RULES AND
REGULATIONS IN ORDER TO ENSURE THAT THE
PEOPLE'S RIGHT TO A BALANCED AND
HEALTHFUL ECOLOGY ARE PROTECTED AND
RESPECTED.

C.

THE COURT OF APPEALS GRAVELY ERRED


IN APPLYING THE PRECAUTIONARY PRINCIPLE IN
THIS CASE DESPITE THE FACT THAT
RESPONDENTS FAILED TO PRESENT AN IOTA OF
EVIDENCE TO PROVE THEIR CLAIM.
VII
THE COURT OF APPEALS GRAVELY ERRED IN
GRANTING A WRIT OF CONTINUING MANDAMUS
AGAINST PETITIONER ISAAA.
VIII
THE COURT OF APPEALS' DECISION DATED 17
MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC
FREEDOM AND SCIENTIFIC
PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276
Petitioners EMB, BPI and FPA, represented by the
Office of the Solicitor General (OSG) assails the
CA Decision granting the petition for writ
of kalikasanand writ of continuing mandamus
despite the failure of Greenpeace, et al.
(respondents) to prove the requisites for their
issuance.
Petitioners contend that while respondents
presented purported studies that supposedly
show signs of toxicity in genetically engineered
eggplant and other crops, these studies are
insubstantial as they were not published in peerreviewed scientific journals. Respondents thus
failed to present evidence to prove their claim
that the Bt talong field trials violated
environmental laws and rules.
As to the application of the precautionary
principle, petitioners asserted that its application
in this case is misplaced. The paper by Prof.
Seralini which was relied upon by the CA, was not
formally offered in evidence. In volunteering the
said article to the parties, petitioners lament that
the CA manifested its bias towards respondents'
position and did not even consider the testimony
of Dr. Davies who stated that "Seralini's work has
been refuted by International committees of
scientists"30 as shown by published articles
critical of Seralini's work.
Petitioners aver that there was no damage to

139

THE EVIDENCE ON RECORD SHOWS THAT


THE BT TALONG FIELD TRIALS DO NOT CAUSE
ENVIRONMENTAL DAMAGE AND DO NOT
PREJUDICE THE LIFE, HEALTH AND PROPERTY OF
INHABITANTS OF TWO OR MORE PROVINCES OR
CITIES.

B.

human health since no Bt talong will be ingested


by any human being during the field trial stage.
Besides, if the results of said testing are adverse,
petitioners will not allow the release of Bt
talong to the environment, in line with the
guidelines set by EO 514. The CA thus
misappreciated the regulatory process as
approval for field testing does not automatically
mean approval for propagation of the same
product. And even assuming that the field trials
may indeed cause adverse environmental or
health effects, the requirement of unlawful act or
omission on the part of petitioners or any of the
proponents, was still absent. Respondents clearly
failed to prove there was any unlawful deviation
from the provisions of DAO 08-2002. The BPI's
factual finding on the basis of risk assessment on
the Bt talong project should thus be accorded
respect, if not finality by the courts.
Petitioners likewise fault the CA in giving such
ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the
environment, lacking in specifics which only
indicates that there was really nothing to
preserve, rehabilitate or restore as there was
nothing damaged or adversely affected in the
first place. As to the supposed inadequacy and
ineffectiveness of existing regulations, these are
all political questions and policy issues best left to
the discretion of the policy-makers, the
Legislative and Executive branches of
government. Petitioners add that the CA treads
on judicial legislation when it recommended the
re-examination of country's existing laws and
regulations governing studies and research on
GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed
to adduce the quantum of evidence necessary to
prove actual or imminent injury to them or the
environment as to render the controversy ripe for
judicial determination. It points out that nowhere
in the testimonies during the "hot-tub"
presentation of expert witnesses did the
witnesses for respondents claim actual or
imminent injury to them or to the environment as
a result of the Bt talong field tests, as they spoke
only of injury in the speculative, imagined kind
without any factual basis. Further, the petition for
writ of kalikasan has been mooted by the
termination of the field trials as of August 10,
2012.
Finding the CA decision as a judgment not based
on fact, UPLBFI maintains that by reason of the
nature, character, scale, duration, design,
processes undertaken, risk assessments and

Against the respondents' bare allegations, UPLBFI


submits the following "specific facts borne by
competent evidence on record" (admitted
exhibits)31:
118. Since the technology's inception 50 years
ago, studies have shown that genetically
modified crops, including Bt talong,
significantly reduce the use of pesticides
by farmers in growing eggplants,
lessening pesticide poisoning to humans.
119. Pesticide use globally has decreased in
the last [14-15] years owing to the use of
insect-resistant genetically modified
crops. Moreover, that insect-resistant
genetically modified crops significantly
reduce the use of pesticides in growing
plants thus lessening pesticide poisoning
in humans, reducing pesticide load in the
environment and encouraging more
biodiversity in farms.

120. Global warming is likewise reduced as


more crops can be grown.
121. Transgenic Bacillus thuringensis (Bt)
cotton has had a major impact on the
Australian cotton industry by largely
controlling Lepidopteran pests. To date, it
had no significant impact on the
invertebrate community studied.
122. Feeding on CrylAcc contaminated nontarget herbivores does not harm
predatory heteropterans and, therefore,
cultivation of Btcotton may provide an
opportunity for conservation of these
predators in cotton ecosystems by
reducing insecticide use.
123. The Bt protein in Bt corn only affects
target insects and that Bt corn pollens do
not negatively affect monarch butterflies.
124. The field trials will not cause
"contamination" as feared by the
petitioners because flight distance of the

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strategies employed, results heretofore recorded,


scientific literature, the safeguards and other
precautionary measures undertaken and applied,
the Bt talong field tests did not or could not have
violated the right of respondents to a balanced
and healthful ecology. The appellate court
apparently misapprehended the nature,
character, design of the field trials as one for
"consumption" rather than for "field testing" as
defined in DAO 08-2002, the sole purpose of
which is for the "efficacy" of the eggplant
variety's resistance to the FSB.

pollinators is a deterrent to cross


pollination. Studies reveal that there can
be no cross pollination more than a fifty
(50) meter distance.
135. There is a 50 year history of safe use and
consumption of agricultural products
sprayed with commercial Bt microbial
pesticides and a 14 year history of safe
consumption of food and feed derived
from Bt crops.
140. In separate reviews by the European Food
Safety Agency (EFSA) and the Food
Standards Australia and New Zealand
(FSANZ), the "work" of one Prof. Seralini
relied upon by [respondents] was
dismissed as "scientifically flawed", thus
providing no plausible basis to the
proposition that Bt talong is dangerous to
public health.
141. In a learned treatise by James Clive
entitled "Global Status of Commercialized
Biotech/GM Crops: 2011," the Philippines
was cited to be the first country in the
ASEAN region to implement a regulatory
system for transgenic crops (which
includes DAO 08-[2]002). Accordingly, the
said regulatory system has also served as
a model for other countries in the region
and other developing countries outside of
Asia.
On the precautionary principle, UPLBFI contends
that the CA misapplied it in this case. The
testimonial and documentary evidence of
respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of
serious and irreversible damage to the
environment. In fact, since BPI started regulating
GM crops in 2002, they have monitored 171 field
trials all over the Philippines and said agency has
not observed any adverse environmental effect
caused by said field trials. Plainly, respondents
failed to show proof of "specific facts" of
environmental damage of the magnitude
contemplated under the Rules of Procedure for
Environmental Cases as to warrant sanctions over
the Bt talong field trials.
Lastly, UPLBFI avers that the Bt talong field trial
was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which
they have been deprived without due process of
law. Stressing that a possibility is not a fact,
UPLBFI deplores the CA decision's
pronouncement of their guilt despite the
preponderance of evidence on the environmental
safety of the field trials, as evident from its
declaration that "the over-all safety guarantee
of Bt talong remains to be still unknown." It thus

G.R. No. 209430


Petitioner UP reiterates UPLBFI's argument that
the Bt talong field testing was conducted in the
exercise of UPLB's academic freedom, which is
aconstitutional right. In this case, there is nothing
based on evidence on record or overwhelming
public welfare concern, such as the right of the
people to a balanced and healthful ecology,
which would warrant restraint on UPLB's exercise
of academic freedom. Considering that UPLB
complied with all laws, rules and regulations
regarding the application and conduct of field
testing of GM eggplant, and was performing such
field tests within the prescribed limits of DAO 082002, and there being no harm to the
environment or prejudice that will be caused to
the life, health or property of inhabitants in two or
more cities or provinces, to restrain it from
performing the said field testing is unjustified.
Petitioner likewise objects to the CA's application
of the precautionary principle in this case, in
violation of the standards set by the Rules of
Procedure for Environmental Cases. It points out
that the Bt eggplants are not yet intended to be
introduced into the Philippine ecosystem nor to
the local market for human consumption.
Cited were the testimonies of two expert
witnesses presented before the CA: Dr. Navasero
who is an entomologist and expert in integrated
pest management and insect taxonomy, and Dr.
Davies, a member of the faculty of the
Department of Plant Biology and Horticulture at
Cornell University for 43 years and served as a
senior science advisor in agricultural technology
to the United States Department of State. Both
had testified that based on generally accepted
and scientific methodology, the field trial
of Bt crops do not cause damage to the
environment or human health.
Petitioner assails the CA in relying instead on the
conjectural statements of Dr. Malayang. It asserts
that the CA could not support its Decision and
Resolution on the pure conjectures and
imagination of one witness. Basic is the rule that
a decision must be supported by evidence on
record.
Respondents' Consolidated Comment

141
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asks if in the meantime, petitioners must bear the


judicial stigma of being cast as violators of the
right of the people to a balanced and healthful
ecology for an injury or
damage unsubstantiated by evidence of scientific
plausibility.

Respondents aver that Bt talong became the


subject of public protest in our country precisely
because of the serious safety concerns on the
impact of Bt talong toxin on human and animal
health and the environment through field trial
contamination. They point out that the inherent
and potential risks and adverse effects of GM
crops are recognized in the Cartagena Protocol
and our biosafety regulations (EO 514 and DAO
08-2002). Contamination may occur through
pollination, ingestion by insects and other
animals, water and soil run off, human error,
mechanical accident and even by stealing was
inevitable in growing Bt talong in an open
environment for field trial. Such contamination
may manifest even after many years and in
places very far away from the trial sites.
Contrary to petitioners' claim that they did not
violate any law or regulation, or unlawful
omission, respondents assert that, in the face of
scientific uncertainties on the safety and effects
of Bt talong, petitioners omitted their crucial
duties to conduct environmental impact
assessment (EIA); evaluate health impacts; get
the free, prior and informed consent of the people
in the host communities; and provide remedial
and liability processes in the approval of the
biosafety permit and conduct of the field trials in
its five sites located in five provinces. These
omissions have put the people and the
environment at serious and irreversible risks.
Respondents cite the numerous studies contained
in "Adverse Impacts of Transgenic Crops/Foods: A
Compilation of Scientific References with
Abstracts" printed by Coalition for a GMO-Free
India; a study on Bt corn in the Philippines,
"Socio-economic Impacts of Genetically Modified
Corn in the Philippines" published by MASIPAG in
2013; and the published report of the
investigation conducted by Greenpeace, "White
Corn in the Philippines: Contaminated with
Genetically Modified Corn Varieties" which
revealed positive results for samples purchased
from different stores in Sultan Kudarat, Mindanao,
indicating that they were contaminated with GM
corn varieties, specifically the herbicide tolerant
and Bt insect resistant genes from Monsanto, the
world's largest biotech company based in the US.
To demonstrate the health hazards posed
by Bt crops, respondents cite the following
sources: the studies of Drs. L. Moreno-Fierros, N.
Garcia, R. Gutierrez, R. Lopez-Revilla, and RI
Vazquez-Padron, all from the Universidad
Nacional Autonoma de Mexico; the conclusion
made by Prof. Eric-Gilles Seralini of the University
of Caen, France, who is also the president of the
Scientific Council of the Committee for

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Independent Research and Information on


Genetic Engineering (CRIIGEN), in his review,
commissioned by Greenpeace, of Mahyco's data
submitted in support of the application to grow
and market Bt eggplant in India; and the medical
interpretations of Prof. Seralini's findings by
Filipino doctors Dr. Romeo Quijano of the
University of the Philippines-Philippine General
Hospital and Dr. Wency Kiat, Jr. of St. Luke's
Medical Center (Joint Affidavit).

interpretations on serious health risks are


strengthened by the findings of a review of the
safety claims in the MAHYCO Dossier authored by
Prof. David A. Andow of the University of
Minnesota, an expert in environmental
assessment in crop science. The review was
made upon the request in 2010 of His Honorable
Shri Jairam Ramesh of the Ministry of
Environment and Forests of India, where MAHYCO
is based. MAHYCO is the corporate creator and
patent owner of the Bt gene inserted in Bt talong.

According to respondents, the above findings and


The conclusions of health hazards from the above studies were summarized 32 by respondents, as follows:
Studies/interpretation by

Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R.


Gutierrez, R.

For Bt modified crops (like Bt talong), there is concern over its


potential

Lopez-Revilla, and RI Vazquez-Padron

allergenicity. CrylAcc (the gene inserted in Bt talong) protoxin


is a potent immunogen (triggers immune response); the
protoxin is immunogenic by both the intraperitoneal (injected)
and intragastric (ingested) route; the immune response to the
protoxin is both systemic and mucosal; and CrylAcc protoxin
binds to surface proteins in the mouse small intestine. These
suggest thatextreme caution is required in the use
of CrylAcc in food crops.

Prof. Eric-Gilles Seralini

His key findings showed statistical significant differences


between group of animals fed GM and non-GM eggplant that
raise food safety concerns and warrant further
investigation.

Dr. Romeo Quijano & Dr. Wency Kiat, Jr.

Interpreting Prof. Seralini's findings, the altered condition of


ratssymptomatically indicate hazards for human health.

Prof. David A. Andow

The MAHYCO dossier is inadequate to support the needed


environmental risk assessment; MAHYCO's food safety
assessment does not comply with international standards; and
that MAHYCO relied on dubious scientific assumptions and
disregarded real environmental threats.

As to environmental effects, respondents said these include the potential for living modified organisms,
such as Bt talong tested in the field or released into the environment, to contaminate non-GM traditional
varieties and other wild eggplant relatives and turn them into novel pests, outcompete and replace their
wild relatives, increase dependence on pesticides, or spread their introduced genes to weedy relatives,
potentially creating superweeds, and kill beneficial insects.
Respondents then gave the following tabulated summary33 of field trial contamination cases drawn from
various news reports and some scientific literature submitted to the court:
What happened

Impact

How did it occur

During 2006 and 2007, traces of


three varieties of unapproved
genetically modified rice owned by
Bayer Crop Science were found in
US rice exports in over 30 countries
worldwide.

In July 2011, Bayer eventually agreed


to a $750m US dollar settlement
resolving claims with about 11,000 US
farmers for market losses and cleanup costs.

Field trials were conducted


between the mid-1990s
and early 2000s. The US
Department of Agriculture
(USDA) reported these field
trials were the likely
sources of the
contamination between the
modified rice and
conventional varieties.

The total costs to the rice industry are


likely to have been over $1bn
worldwide.

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However, it was unable to


conclude [if it] was caused
by gene flow (cross
pollination) or mechanical
mixing.

In 2009, unauthorised GElinseed


Canada lost exports to its main
(also known as 'flax') produced by a European market worth hundreds of
public research institution was
millions of dollars and non-GElinseed
discovered in food in several EU
farmers have faced huge costs and
countries, having been imported
market losses.
from Canada.

In the late 1980s a public


research institution, the
Crop Development Centre
in Saskatoon, Saskatchewan, developed a
GElinseed variety FP96
believed to be the origin of
the contamination.

During 2004, the Thai government


found that papaya samples from 85
farms were genetically modified.
The contamination continued into
2006 and it is likely that the GE
contamination reached the food
chain.

Exports of papaya to Europe have


been hit because of fears that
contamination could have spread. The
Thai government said it was taking
action to destroy the contaminated
trees.

GEpapaya is not grown


commercially in Thailand,
so it was clear that the
contamination originated
from the government
station experimentally
breeding GE papaya trees.
Tests that showed that one
third of papaya orchards
tested in the eastern
province of Rayong and the
north-eastern provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GEcontaminated papaya
seeds in July 2005. The
owners said that a research
station gave them the
seeds.

In the US in 2002, seeds from a


GEmaize pharma-crop containing a
pig vaccine grew independently
among normal soybean crops.

Prodigene, the company responsible,


was fined $3m for tainting half a
million bushels of soya bean with a
trial vaccine used to prevent stomach
upsets in piglets. Prodigene agreed to
pay a fine of $250,000 and to repay
the government for the cost of
incinerating the soya bean that had
been contaminated with genetically
altered corn.

Seeds from the GEmaize


crop sprouted voluntarily in
the following season.

In 2005, Greenpeace discovered


that GE rice seeds had been
illegally sold in Hubei, China. Then,
in 2006, GE rice event Bt63 was
found in baby food sold in Beijing,
Guangzhou and Hong Kong. In late
2006, GE rice Bt63 was found to be
contaminating exports in Austria,
France, the UK and Germany. In
2007 it was again found in EU
imports to Cyprus, Germany,
Greece, Italy and Sweden.

The European Commission adopted


emergency measures (on 15 August
2008) to require compulsory
certification for the imports of Chinese
rice products that could contain the
unauthorised GE rice Bt63.

The source of the


contamination appears to
have been the result of
illegal planting of GEseeds.
Seed companies in China
found to have sold GErice
hybrid seed to farmers
operated directly under the
university developing GM
rice. It has been reported
that the key scientist sat on
the board of one GEseed
company.

The Chinese government took several


measures to try to stop the
contamination, which included
punishing seed companies,
confiscating GEseed, destroying
GErice grown in the field and
tightening control over the food chain.

144

The European Commission blocked US


grain import unless they could be
guaranteed free of Bt10. The USDA
fined Syngenta $375,000. There are
no figures for the wider costs.

Refuting the claim of petitioners that


contamination is nil or minimal because the scale
of Bt talong field trial is isolated, restricted and
that "each experiment per site per season
consists of a maximum net area planted
to Bt eggplant of between 480 sq. meters to
1,080 sq. meters,"34 respondents emphasize that
as shown by the above, contamination knows no
size and boundaries in an open environment.
With regard to the required geographical
coverage of environmental damage for the
issuance of writ of kalikasan, respondents assert
that while the Bt talong field trials were
conducted in only five provinces, the
environmental damage prejudicial to health
extends beyond the health of the present
generation of inhabitants in those provinces.
On petitioners' insistence in demanding that
those who allege injury must prove injury,
respondents said that biosafety evidence could
not be readily contained in a corpus delicti to be
presented in court. Indeed, the inherent and
potential risks and adverse effects brought by
GMOs are not like dead bodies or wounds that are
immediately and physically identifiable to an
eyewitness and which are resulting from a
common crime. Precisely, this is why the
Cartagena Protocol's foundation is on the
precautionary principle and development of
sound science and its links, to social and human
rights law through its elements of public
awareness, public participation and public right to
know. This is also why the case was brought
under the Rules of Procedure for Environmental
Cases and not under ordinary or other rules, on
the grounds of violation of the rights of the

In 2005, the European Commission


announced that illegal Bt10
GEmaize produced by GEseed
company Syngenta had entered the
European food chain. The GEmaize
Bt10 contains a marker gene that
codes for the widely-used antibiotic
ampicillin, while the Bt11 does not.
According to the international
Codex Alimentarius Guideline for
Conduct of Food Safety Assessment
of Foods Derived from
Recombinant-DNA:Plants: 'Antibiotic
resistance genes used in food
production that encode resistance
to clinically used antibiotics should
not be present in foods' because it
increases the risk of antibiotic
resistance in the population.

The contamination arose


because Syngenta's quality
control procedures did not
differentiate between Bt10
and its sister commercial
line, Bt11. As a result, the
experimental and
substantially different Bt10
line was mistakenly used in
breeding. The error was
detected four years later
when one of the seed
companies developing Bt11
varieties adopted more
sophisticated analytical
techniques.

Filipino people to health, to a balanced and


healthful ecology, to information on matters of
national concern, and to participation. The
said Rules specifically provides that the
appreciation of evidence in a case like this must
be guided by the precautionary principle.
As to the non-exhaustion of administrative
remedies being raised by petitioners as ground to
dismiss the present petition, respondents said
that nowhere in the 22 sections of DAO 08-2002
that one can find a remedy to appeal the decision
of the DA issuing the field testing permit. What is
only provided for is a mechanism for applicants of
a permit, not stakeholders like farmers, traders
and consumers to appeal a decision by the BPIDA in case of denial of their application for field
testing. Moreover, DAO 08-2002 is silent on
appeal after the issuance of the biosafety permit.
Finally, on the propriety of the writ of continuing
mandamus, respondents argue that EO 514
explicitly states that the application of biosafety
regulations shall be made in accordance
with existing laws and the guidelines therein
provided. Hence, aside from risk assessment
requirement of the biosafety regulations,
pursuant to the PEISS law and Sections 12 and 13
of the Philippine Fisheries Code of 1998, an
environmental impact statement (EIS) is required
and an environmental compliance certificate
(ECC) is necessary before such Bt crop field trials
can be conducted.
Petitioners' Replies
G.R. No. 209271

As to the propriety of the writ of continuing


mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and
"ministerial" duty to re-examine and reform the
biosafety regulatory system, and to propose
curative legislation. The law (EO 514) cited by
respondents does not impose such duty on public
petitioners. As for the Cartagena Protocol, it laid
down a procedure for the evaluation of the
Protocol itself, not of the Philippine biosafety
regulatory system. ISAAA stresses that the CA is
without jurisdiction to review the soundness and
wisdom of existing laws, policy and regulations.
Indeed, the questions posed by the respondents
are political questions, which must be resolved by
the executive and legislative departments in
deference to separation of powers.
On the availability of administrative remedies,
ISAAA asserts that respondents are mistaken in
saying that these are limited to appeals. The
concerned public may invoke Section 8 (G) of
DAO 08-2002 which grants them the right to
submit their written comments on the BPI
regarding the field testing permits, or Section 8
(P) for the revocation and cancellation of a field
testing permit. Respondents' failure to resort to
the internal mechanisms provided in DAO 082002 violates the rule on exhaustion of
administrative remedies, which warrants the
dismissal of respondents' petition.
ISAAA points out that under Section 7 of DAO 082002, the BPI is the approving authority for field
testing permits, while under Title IV, Chapter 4,
Section 19 of the Administrative Code of 1987,
the DA through the BPI, is responsible for the
production of improved planting materials and
protection of agricultural crops from pests and
diseases. In bypassing the administrative
remedies available, respondents not only failed to
exhaust a less costly and speedier remedy, it also
deprived the parties of an opportunity to be
heard by the BPI which has primary jurisdiction
and knowledgeable on the issues they sought to
raise.

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ISAAA contends that the Precautionary Principle


and the Rules of Procedure for Environmental
Cases do not empower courts to adjudicate a
controversy that is moot and academic. It points
out that respondents failed to satisfy all the
requirements of the exception to the rule on
actual controversies. The Biosafety Permit is valid
for only two years, while the purported stages in
the commercialization, propagation and
registration of Bt talong still cannot confer
jurisdiction on the CA to decide a moot and
academic case.

Rejecting the scientific data presented by the


respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it
was not formally offered in evidence and are
hearsay. Majority of those records contain
incomplete information and none of them pertain
to the Bt talong. Respondents likewise presented
two misleading scientific studies which have
already been discredited: the 2013 study by B.P.
Mezzomo, et al. and the study by Prof. Seralini in
2012. Petitioner notes that both articles have
been withdrawn from publication.
ISAAA further describes Annex "A" as a mere
compilation of records of flawed studies with only
126 usable records out of the 338 records. In
contrast, petitioner cites the work of Nicolia, A., A.
Manzo, F. Veronesi, and D. Rosellini, entitled "An
overview of the last 10 years of genetically
engineered crop safety research." The authors
evaluated 1,783 scientific records of GE crop
safety research papers, reviews, relevant
opinions and scientific reports from 2002-2012.
Their findings concluded that "the scientific
research conducted so far has not detected any
significant hazards directly connected with the
use of GE crops." In the article "Impacts of GM
crops on biodiversity," in which scientific findings
concluded that "[o]verall, x x x currently
commercialized GM crops have reduced the
impacts of agriculture on biodiversity, through
enhanced adoption of conservation tillage
practices, reduction of insecticide use and use of
more environmentally benign herbicides and
increasing yields to alleviate pressure to convert
additional land into agricultural use."
Debunking the supposed inherent risks and
potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research
(2001-2010), concluded from more than 130
research projects, covering a period of 25 years
of research, and involving more than 500
independent research groups, that
"biotechnology, and in particular GMOs, are not
per se more risky than e.g. conventional plant
breeding technologies." Another article cited is
"Assessment of the health impact of GM plant
diets in long-term and multigenerational animal
feeding trials: A literature review" which states
that scientific findings show that GM crops do not
suggest any health hazard, and are nutritionally
equivalent to their non-GM counterparts and can
be safely used in food and feed.
Addressing the studies relied upon by
respondents on the alleged adverse
environmental effects of GM crops, petitioner
cites the article "Ecological Impacts of Genetically
Modified Crops: Ten Years of Field Research and

The two tables/summaries of studies submitted


by respondents are likewise rejected by ISAAA,
which presented the following comments and
criticisms on each of the paper/article cited, thus:
With respect to the study made by L. MorenoFierros, et al., the same should be rejected
considering that this was not formally offered as
evidence by respondents. Hence, the same may
not be considered by the Honorable Court.
(Section 34, Rule 132 of the Rules of Court;Heirs
of Pedro Pasag v. Spouses Parocha, supra)
Further, the study is irrelevant and immaterial.
The CrylAcc protein used in the study was from
engineered E. coli and may have been
contaminated by endotoxin. The CrylAcc used in
the study was not from Bt talong. Hence,
respondents' attempt to extrapolate the
interpretation and conclusion of this study to Bt
talong is grossly erroneous and calculated to
mislead and deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and
Michael S. Koch of the said study by L. MorenoFierros, et al., which was published in an article
entitled A Review of the Food Safety of Bt Crops,
the authors reported that Adel-Patient, et al. tried
and failed to reproduce the results obtained by
the study made by L. Moreno-Fierros, et al. The
reason is because of endotoxin contamination in
the preparation of theCrylAc protein. Further,
when purified Cry protein was injected to mice
through intra-gastric administration, there was no
impact on the immune response of the mice.
In addition, the biological relevance of the study
made by L. Moreno-Fierros, et al. to assessing
potential health risks from human consumption of
foods derived from Bt crops can be questioned
because the doses tested in mice is irrelevant to
human dietary exposure,i.e., the doses given
were "far in excess of potential human intakes".
With respect to the interpretation made by Prof.
Eric-Gilles Seralini, the same is not entitled to any
weight and consideration because his sworn
statement was not admitted in evidence by the
Court of Appeals.

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Commercial Cultivation" which concluded that


"[T]he data available so far provide no scientific
evidence that the cultivation of the presently
commercialized GM crops has caused
environmental harm." A related article, "A MetaAnalysis of Effects of Bt Cotton and Maize on
Non-target Invertebrates" states that scientific
findings show that non-target insects are more
abundant in GM crop fields like Bt cotton
and Bt maize fields than in non-GM crops that are
sprayed with insecticides.

Further, Seralini's findings are seriously flawed.


Food safety experts explained the differences
observed by Seralini's statistical analysis as
examples of random biological variation that
occurs when many measurements are made on
test animals, and which have no biological
significance. Hence, there are no food safety
concerns. Further, petitioner ISAAA presented in
evidence the findings of regulatory bodies,
particularly the EFSA and the FSANZ, to
controvert Seralini's findings. The EFSA and the
FSANZ rejected Seralini's findings because the
same were based on questionable statistical
procedure employed in maize in 2007.
In addition, it must be pointed out that the Indian
regulatory authority, GEAC, has not revised its
earlier decision approving the safety
of Bteggplant notwithstanding the findings of
Seralini's assessment. In effect, Seralini's findings
and interpretation were rejected by the Indian
regulatory agency.
With respect to the interpretation made by Drs.
Romeo Quijano and Wency Kiat, the same is not
entitled to any weight and consideration because
the Court of Appeals did not admit their sworn
statement. Further, Drs. Romeo Quijano and
Wency Kiat sought to interpret a seriously flawed
study, making their sworn statements equally
flawed.
In an attempt to mislead the Honorable Court,
respondents tried to pass off the review of Prof.
David A. Andow as the work of the National
Academy of Sciences of the USA. Such claim is
grossly misleading. In truth, as Prof. David A.
Andow indicated in the preface, the report was
produced upon the request of Aruna Rodriguez, a
known anti-GM campaigner.
Further, Prof. David A. Andow's review did not
point to any negative impact to the environment
of Mahyco's Bt brinjal (Indian name for Bt talong)
during the entire period of conduct of field trials
all over the country. He concluded, however, that
the dossier is inadequate for ERA. This is
perplexing considering this is the same gene that
has been used in Bt cotton since 1996. Scores of
environmental and food safety risk assessment
studies have been conducted and there is wealth
of information and experience on its safety.
Various meta-analyses indicate that delaying the
use of this already effective Bt brinjal for
managing this devastating pest only ensures the
continued use of frequent insecticide sprays with
proven harm to human and animal health and the
environment and loss of potential income of
resource-poor small farmers.

As to the "commissioned studies" on Bt corn in


the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were
not formally offered in evidence; self-serving as it
was conducted by respondents Greenpeace and
MASIPAG themselves; the persons who prepared
the same were not presented in court to identify
and testify on its findings; and the methods used
in the investigation and research were not
scientific. Said studies failed to establish any
correlation between Bt corn and the purported
environmental and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A"
of respondents' consolidated comment, for the
same reasons given by ISAAA. They noted that
the affidavit of Prof. Seralini, and the joint
affidavit of Dr. Kiat and Dr. Quijano were denied
admission by the CA. Given the failure of the
respondents to present scientific evidence to
prove the claim of environmental and health
damages, respondents are not entitled to the writ
of kalikasan.
Public petitioners reiterate that in issuing the
Biosafety Permits to UPLB, they made sure that
the latter complied with all the requirements
under DAO 08-2002, including the conduct of risk

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Notwithstanding the conclusions of Prof. David A.


Andow, to date, it is worth repeating that the
Indian regulatory body, GEAC, has not revised its
earlier decision approving the safety
of Bt eggplant based on the recommendation of
two expert committees which found the Mahyco
regulatory dossier compliant to the ERA
stipulated by the Indian regulatory body. In effect,
like Seralini, Andow's findings and interpretation
were also rejected by the Indian regulatory
agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not
apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002
already takes into consideration any and all
significant risks not only to the environment but
also to human health. The requirements under
Sections 26 and 27 of the Local Government
Code are also inapplicable because the field
testing is not among the six environmentally
sensitive activities mentioned therein; the public
consultations and prior local government unit
(LGU) approval, were nevertheless complied with.
Moreover, the field testing is an exercise of
academic freedom protected by the Constitution,
the possibility of Bt talong's commercialization in
the future is but incidental to, and fruit of the
experiment.

assessment. The applications for field testing


of Bt talong thus underwent the following
procedures:
Having completed the contained experiment on
the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to
conduct multi-locational field testing of Bt talong.
Even before the proponent submitted its
application, petitioner BPI conducted a
consultative meeting with the proponent to
enlighten the latter about the requirements set
out by DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's
applications vis-a-vis the requirements of Section
8 of DA AO No. 8 and found them to be sufficient
in form and substance, to wit:
First. The applications were in the proper format
and contained all of the relevant information as
required in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a
(i) Certification from the NCBP that the regulated
article has undergone satisfactory testing under
contained conditions in the Philippines, (ii)
technical dossier consisting of scientific literature
and other scientific materials relied upon by the
applicant showing that Bt talong will not pose any
significant risks to human health and the
environment, and (iii) copy of the proposed PIS
for Field Testing as prescribed by Section 8 (A) (2)
of DA AO No. 08; and
Third. The applications contained the
Endorsement of proposal for field testing, duly
approved by the majority of all the members of
the respective Institutional Biosafety Committees
(IBC), including at least one community
representative, as required by Section 8 (E) of DA
AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08,
the IBC is responsible for the initial evaluation of
the risk assessment and risk management
strategies of the applicant for field testing using
the NCBP guidelines. The IBC shall determine
if the data obtained under contained
conditions provide sufficient basis to
authorize the field testing of the regulated
article.In making the determination, the IBC
shall ensure that field testing does not pose
any significant risks to human health and
the environment. The IBC may, in its discretion,
require the proponent to perform additional
experiments under contained conditions before
acting on the field testing proposal. The IBC shall
either endorse the field testing proposal to the
BPI or reject it for failing the scientific risk
assessment.

Thereafter, on separate occasions, petitioner BPI


received the final risk assessment reports of the
three STRP members recommending the grant of
Biosafety Permits to UPLB after a thorough risk
assessment and evaluation of UPLB's application
for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB
proofs of posting of the PISs for Field Testing in
each concerned barangays and city/municipal
halls of the localities having jurisdiction over its
proposed field trial sites.
In addition to the posting of the PISs for Field
Testing, petitioner BPI conducted consultative
meetings and public seminars in order to provide
public information and in order to give an
opportunity to the public to raise their questions
and/or concerns regarding the Bt talongfield
trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of
the Local Government Code are inapplicable to
the Bt talong field testing considering that its
subject matter is not mass production for human
consumption. The project entails only the
planting of Bt eggplants and cultivation in a
controlled environment; indeed, the conduct of a
field trial is not a guarantee that the Bt talong will
be commercialized and allowed for cultivation in
the Philippines.
On the non-exhaustion of administrative
remedies by the respondents, petitioners note

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b. Relatedly, UPLB had previously complied with


Section 1 (L) of DA AO No. 08 which requires an
applicant for field testing to establish an IBC in
preparation for the field testing of a regulated
article and whose membership has been
approved by the BPI. Section 1 (L) of DA AO No.
08, requires that the IBC shall be composed of at
least five (5) members, three (3) of whom shall
be designated as "scientist-members" who shall
possess scientific and technological knowledge
and expertise sufficient to enable them to
evaluate and monitor properly any work of the
applicant relating to the field testing of a
regulated article, and the other members are
designated as "community representatives" who
are in a position to represent the interest of the
communities where the field testing is to be
conducted.
Before approving the intended multi-locations
[field] trials, petitioner BPI, pursuant to Section 8
(F) of DA AO No. 08, forwarded the complete
documents to three (3) independent Scientific
Technical Review Panel (STRP) members. Pending
receipt of the risk assessment reports of the three
STRP members, petitioner BPI conducted its own
risk assessment.

that during the period of public consultation


under DAO 08-2002, it is BPI which processes
written comments on the application for field
testing of a regulated article, and has the
authority to approve or disapprove the
application. Also, under Section 8 (P), BPI may
revoke a biosafety permit issued on the ground
of, among others, receipt of new information that
the field testing poses significant risks to human
health and the environment. Petitioners assert
they were never remiss in the performance of
their mandated functions, as shown by their
immediate action with respect to the defective
certification of posting of PIS in Kabacan, North
Cotabato. Upon receiving the letter-complaint on
January 24, 2012, BPI readily ordered their reposting. The same incident occurred in Davao
City, where BPI refused to lift the suspension of
biosafety permits until "rectification of the
conditions for public consultation is carried out."
To underscore respondents' blatant disregard of
the administrative process, petitioners refer to
documented instances when respondents took
the law in their own hands. Greenpeace barged
into one of the Bt talong field trial sites at Bgy.
Paciano Rizal, Bay, Laguna, forcibly entered the
entrance gate through the use of a bolt cutter,
and then proceeded to uproot the experimental
crops without permission from BPI or the project
proponents. Petitioners submit that the nonobservance of the doctrine of exhaustion of
administrative remedies results in lack of cause
of action, one of the grounds under theRules of
Court justifying the dismissal of a complaint.
Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)
Crop Life is an association of companies which
belongs to a global (Crop Life International) as
well as regional (Crop Life Asia) networks of
member-companies representing the plant
science industry. It aims to "help improve the
productivity of Filipino farmers and contribute to
Philippine food security in a sustainable way." It
supports "innovation, research and development
in agriculture through the use of biology,
chemistry, biotechnology, plant breeding, other
techniques and disciplines."
On procedural grounds, Crop Life assails the CA in
rendering judgment in violation of petitioners'
right to due process because it was prevented
from cross-examining the respondents' expert
witnesses and conducting re-direct examination
of petitioners' own witnesses, and being an
evidently partial and prejudiced court. It said the
petition for writ of kalikasan should have been

Crop Life concurs with the petitioners in arguing


that respondents failed to specifically allege and
prove the particular environmental damage
resulting from the Bt talong field testing. It cites
the scientific evidence on record and the
internationally accepted scientific standards on
GMOs and GMO field testing, and considering the
experience of various countries engaged in
testing GMOs, telling us that GMO field testing
will not damage the environment nor harm
human health and more likely bring about
beneficial improvements.
Crop Life likewise assails the application of the
Precautionary Principle by the CA which
erroneously equated field testing of Bt
talong with Bt talong itself; failed to recognize
that in this case, there was no particular
environmental damage identified, much less
proven; relied upon the article of Prof. Seralini
that was retracted by the scientific journal which
published it; there is no scientific uncertainty on
the adverse effects of GMOs to environment and
human health; and did not consider respondents'
failure to prove the insufficiency of the regulatory
framework under DAO 08-2002.
On policy grounds, Crop Life argues that requiring
all organisms/plants to be considered absolutely
safe before any field testing may be allowed,
would result in permanently placing the
Philippines in the shadows of more developed
nations (whose economies rest on emerging
markets importing products from them). It points
out that the testing of Bt talong specifically
addresses defined problems such as the need to
curb the misuse of chemical pesticides.
Biotechnology Coalition of the Philippines
(BCP)
BCP is a non-stock, non-profit membership
association, a broad-based multi-sectoral
coalition of advocates of modern biotechnology in
the Philippines.
Reversal of the CA ruling is sought on the
following grounds:
I.
THE COURT OF APPEALS ERRED IN TAKING

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dismissed outright as it effectively asks the Court


to engage in "judicial legislation" to "cure" what
respondents feel is an inadequate regulatory
framework for field testing of GMOs in the
Philippines. Respondents also violated the
doctrine of exhaustion of administrative
remedies, and their petition is barred by estoppel
and laches.

COGNIZANCE OF THE KALIKASAN PETITION IN


THE ABSENCE OF ANY JUSTICIABLE
CONTROVERSY.
II.
EXISTING LEGISLATION AND ADMINISTRATIVE
REGULATIONS ALREADY INCORPORATE THE
PRECAUTIONARY PRINCIPLE AS A GUIDING
PRINCIPLE IN RELATION TO GMOs.
III.
THE CA DECISION AND THE CA RESOLUTION
IMPROPERLY APPLIED THE PRECAUTIONARY
PRINCIPLE.
IV.
THE COURT OF APPEALS' ERRONEOUS
APPLICATION OF THE PRECAUTIONARY PRINCIPLE,
IF SUSTAINED, WOULD PRODUCE A DANGEROUS
PRECEDENT THAT IS ANTI-PROGRESS, ANTITECHNOLOGY AND, ULTIMATELY, DETRIMENTAL
TO THE FILIPINO
PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a
supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA
entertained a prohibited collateral attack on the
sufficiency of DAO 08-2002. Though not
invalidating the issuance, which the CA knew was
highly improper, it nonetheless granted the
petition for writ of kalikasan on the theory that
"mere biosafety regulations" were insufficient to
guarantee the safety of the environment and the
health of the people.
Also reiterated were those grounds for dismissal
already raised by the petitioners: failure to
exhaust administrative remedies and finality of
findings of administrative agencies.
BCP further asserts that the application of
a stringent "risk assessment" process to
regulated articles prior to any release in the
environment for field testing mandated by AO No.
8 sufficiently complies with the rationale behind
the development of the precautionary principle.
By implementing the stringent provisions of DAO
08-2002, in conjunction with the standards set by
EO 514 and the NBF, the government
preemptively intervenes and takes precautionary
measures prior to the release of any potentially
harmful substance or article into the
environment. Thus, any potential damage to the
environment is prevented or negated. Moreover,
international instruments ratified and formally
adopted by the Philippines (CBD and the
Cartagena Protocol) provide additional support in

On the "misapplication" by the CA of the


precautionary principle, BCP explains that the
basic premise for its application is the existence
of threat of harm or damage to the environment,
which must be backed by a reasonable scientific
basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to
the public respondents in a petition for writ
of kalikasan. Here, the CA relied heavily on its
observation that "... field trials of bt talongcould
not be declared ... as safe to human health and to
ecology, with full scientific certainty, being an
alteration of an otherwise natural state of affairs
in our ecology" and "introducing a genetically
modified plant in our intricate world of plants by
humans certainly appears to be an ecologically
imbalancing act," among others. BCP finds that
this pronouncement of the CA constitutes an
indictment not only against Bt talong but against
all GMOs as well. The appellate court's opinion is
thus highly speculative, sweeping and laced with
obvious bias.
There being no credible showing in the record
that the conduct of Bt talong field trials entails
real threats and that these threats pertain to
serious and irreversible damage to the
environment, BCP maintains that the
precautionary principle finds no application in this
case. While Rule 20 of the Rules of Procedure for
Environmental Cases states that "[w]hen there is
a lack of full scientific certainty in establishing a
causal link between human activity and
environmental effect, the court shall apply the
precautionary principle in resolving the case
before it," the CA failed to note that the element
of lack of full scientific certainty pertains merely
to the causal link between human activity and
environmental effect, and not the existence or
risk of environmental effect.
BCP laments that sustaining the CA's line of
reasoning would produce a chilling effect against
technological advancements, especially those in
agriculture. Affirming the CA decision thus sets a
dangerous precedent where any and all human
activity may be enjoined based on unfounded
fears of possible damage to health or the
environment.
Issues
From the foregoing submissions, the Court is
presented with the following issues for resolution:
1.

Legal standing of respondents;

150

2.
3.

the proper application of the precautionary


principle in relation to GMOs and the
environment.

Mootness;
Violation of the doctrines of primary
jurisdiction and exhaustion of administrative
remedies;

4.

Application of the law on environmental


impact statement/assessment on projects
involving the introduction and propagation of
GMOs in the country;

5.

Evidence of damage or threat of damage


to human health and the environment in two or
more provinces, as a result of the Bt talong field
trials;

6.

Neglect or unlawful omission committed


by the public respondents in connection with the
processing and evaluation of the applications
for Bt talong field testing; and

7.

Application of the Precautionary Principle.


The Court's Ruling
Legal Standing
Locus standi is "a right of appearance in a court
of justice on a given question."38 It refers
particularly to "a party's personal and substantial
interest in a case where he has sustained or will
sustain direct injury as a result" of the act being
challenged, and "calls for more than just a
generalized grievance."39
However, the rule on standing is a matter of
procedure which can be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public
interest so requires, such as when the matter is of
transcendental importance, of overreaching
significance to society, or of paramount public
interest.40 The Court thus had invariably adopted
a liberal policy on standing to allow ordinary
citizens and civic organizations to prosecute
actions before this Court questioning the
constitutionality or validity of laws, acts, rulings
or orders of various government agencies or
instrumentalities.41
Oposa v. Factor an, Jr.42 signaled an even more
liberalized policy on locus standi in public suits. In
said case, we recognized the "public right" of
citizens to "a balanced and healthful ecology
which, for the first time in our nation's
constitutional history, is solemnly incorporated in
the fundamental law." We held that such right
need not be written in the Constitution for it is
assumed, like other civil and political rights

Since the Oposa ruling, ordinary citizens not only


have legal standing to sue for the enforcement of
environmental rights, they can do so in
representation of their own and future
generations. Thus:
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We
find no difficulty in ruling that they can, for
themselves, for others of their generation and for
the succeeding generations, file a class
suit. Their personality to sue in behalf of the
succeeding generations can only be based
on the concept of intergenerational
responsibility insofar as the right to a
balanced and healthful ecology is
concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony
of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably
include, inter alia, the judicious disposition,
utilization, management, renewal and
conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their
exploration, development and utilization be
equitably accessible to the present as well as
future generations. Needless to say, every
generation has a responsibility to the next to
preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology.
Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at
the same time, the performance of their
obligation to ensure the protection of that right
for the generations to come.43(Emphasis
supplied.)
The liberalized rule on standing is now enshrined
in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in
environmental cases.44 The provision on citizen
suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that
humans are stewards of nature," and aims to
"further encourage the protection of the
environment."45
There is therefore no dispute on the standing of
respondents to file before this Court their petition
for writ of kalikasan and writ of continuing
mandamus.
Mootness

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guaranteed in the Bill of Rights, to exist from the


inception of mankind and it is an issue of
transcendental importance with intergenerational
implications. Such right carries with it the
correlative duty to refrain from impairing the
environment.

It is argued that this case has been mooted by


the termination of all field trials on August 10,
2012. In fact, the validity of all Biosafety permits
issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer
presents a justiciable controversy because the
issues involved have become academic or dead,
or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised
again between the parties.46 Time and again,
courts have refrained from even expressing an
opinion in a case where the issues have become
moot and academic, there being no more
justiciable controversy to speak of, so that a
determination thereof would be of no practical
use or value.47
Nonetheless, courts will decide cases, otherwise
moot and academic if: first, there is a grave
violation of the Constitution; second, the
exceptional character of the situation and the
paramount public interest is involved; third, when
the constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar and the public; and fourth, the
case is capable of repetition yet evading
review.48 We find that the presence of the second
and fourth exceptions justified the CA in not
dismissing the case despite the termination of Bt
talong field trials.
While it may be that the project proponents of Bt
talong have terminated the subject field trials, it
is not certain if they have actually completed the
field trial stage for the purpose of data gathering.
At any rate, it is on record that the proponents
expect to proceed to the next phase of the
project, the preparation for commercial
propagation of the Bt eggplants. Biosafety
permits will still be issued by the BPI for Bt
talong or other GM crops. Hence, not only does
this case fall under the "capable of repetition yet
evading review" exception to the mootness
principle, the human and environmental health
hazards posed by the introduction of a genetically
modified plant, a very popular staple vegetable
among Filipinos, is an issue of paramount public
interest.
Primary Jurisdiction and Exhaustion of
Administrative Remedies
In Republic v. Lacap,49 the Court explained the
related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek
the intervention of the court, he should first avail
of all the means afforded him by administrative

Corollary to the doctrine of exhaustion of


administrative remedies is the doctrine of
primary jurisdiction; that is, courts cannot or will
not determine a controversy involving a question
which is within the jurisdiction of the
administrative tribunal prior to the resolution of
that question by the administrative tribunal,
where the question demands the exercise of
sound administrative discretion requiring the
special knowledge, experience and services of
the administrative tribunal to determine technical
and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of
administrative remedies and the corollary
doctrine of primary jurisdiction, which are based
on sound public policy and practical
considerations, are not inflexible rules. There
are many accepted exceptions, such as: (a)
where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting
to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where
the amount involved is relatively small so as to
make the rule impractical and oppressive; (e)
where the question involved is purely legal and
will ultimately have to be decided by the courts of
justice; (f) where judicial intervention is urgent;
(g) when its application may cause great and
irreparable damage; (h) where the controverted
acts violate due process; (i) when the issue of
non-exhaustion of administrative remedies has
been rendered moot; (j) when there is no other
plain, speedy and adequate remedy;
(k) when strong public interest is involved; and,
(1) in quo warranto proceedings. x x x (Emphasis
supplied)
Under DAO 08-2002, the public is invited to
submit written comments for evaluation by BPI
after public information sheets have been posted
(Section 7[G]). Section 7(P) also provides for
revocation of field testing permit on certain
grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to
Field Test may be revoked for any of the following
grounds:
1.

Provision of false information in


the Application to Field Test;

Violation of SPS or biosafety rules and


regulations or of any conditions specified in the
permit;

3.

Failure to allow the inspection of the field


testing site;

4.

Receipt by BPI of new information that the


field testing of the regulated article poses
significant risks to human health and the
environment;

5.

Whether the regulated article was


imported, misdeclaration of shipment; or

6.

Such other grounds as BPI may deem


reasonable to prevent significant risks to human
health and the environment.

152

2.

processes. The issues which administrative


agencies are authorized to decide should not be
summarily taken from them and submitted to a
court without first giving such administrative
agency the opportunity to dispose of the same
after due deliberation.

Respondents sought relief under the Rules of


Procedure for Environmental Cases, claiming
serious health and environmental adverse effects
of the Bt talong field trials due to "inherent risks"
associated with genetically modified crops and
herbicides. They sought the immediate issuance
of a TEPO to enjoin the processing for field testing
and registering Bt talong as herbicidal product in
the Philippines, stopping all pending field trials
of Bt talonganywhere in the country, and ordering
the uprooting of planted Bt talong in the field trial
sites.
In addition to the TEPO and writ of kalikasan,
respondents also sought the issuance of a writ of
continuing mandamus commanding the
respondents to: (1) comply with the requirement
of environmental impact statement; (2) submit
comprehensive risk assessments, field test
reports, regulatory compliance reports and other
material documents on Bt talong including issued
certifications on public consultation with LGUs;
(3) work with other agencies to submit a draft
amendment to biosafety regulations; and (4) BPI,
in coordination with relevant government
agencies, conduct balanced nationwide public
information on the nature of Bt talong field trial,
and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not
provide a speedy, or adequate remedy for the
respondents "to determine the questions of
unique national and local importance raised here
that pertain to laws and rules for environmental
protection, thus [they were] justified in coming to
this Court."50 We take judicial notice of the fact
that genetically modified food is an intensely
debated global issue, and despite the entry of
GMO crops (Bt corn) into the Philippines in the
last decade, it is only now that such controversy

Genetic Engineering

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involving alleged damage or threat to human


health and the environment from GMOs has
reached the courts.

Genetic manipulation has long been practiced by


conventional breeders of plant or animal to fulfill
specific purposes. The basic strategy employed is
to use the sexual mechanism to reorganize the
genomes of two individuals in a new genetic
matrix, and select for individuals in the progeny
with the desirable combination of the parental
characteristics. Hybridization is the conventional
way of creating variation. In animals, mating is
effected by introducing the desired sperm donor
to the female at the right time. In plants, pollen
grains from the desired source are deposited on
the stigma of a receptive female plant. Pollination
or mating is followed by fertilization and
subsequently development into an embryo. The
effect of this action is the reorganization of the
genomes of two parents into a new genetic
matrix to create new individuals expressing traits
from both parents. The ease of crossing of mating
varies from one species to another. However,
conventional breeding technologies are limited by
their long duration, need for sexual compatibility,
low selection efficiency, and restricted gene
pool.51
Recombinant DNA (rDNA) technology, often
referred to as genetic engineering, allows
scientists to transfer genes from one organism to
any other, circumventing the sexual process. For
example, a gene from a bacterium can be
transferred to corn. Consequently, DNA
technology allowed scientists to treat all living
things as belonging to one giant breeding pool.
Unlike other natural genome rearrangements
phenomena, rDNA introduces alien DNA
sequences into the genome. Even though
crossing of two sexually compatible individuals
produces recombinant progeny, the term
recombinant DNA is restricted to the product of
the union of DNA segments of different biological
origins. The product of recombinant DNA
manipulation is called a transgenic
organism. rDNA is the core technology of
biotechnology.52
The organism that is created through genetic
engineering is called a genetically modified
organism (GMO). Since the production of the first
GMOs in the 1970s, genes have been transferred
between animal species, between plant species,
and from animal species to plant species. Some
genes can make an animal or plant grow faster or
larger, or both. A gene produced by flounder
(anti-freeze) was transplanted into salmon so that

salmon can be farmed in colder climates. Many


species offish are genetically engineered to speed
growth, to alter flesh quality, and to increase cold
and disease resistance. In farm animals such as
cattle, genes can be inserted to reduce the
amount of fat in meat, to increase milk
production, and to increase superior cheesemaking proteins in milk. Biotechnology has also
modified plants to produce its own pesticide,
resist common diseases or to tolerate weedkilling herbicide sprays.53
Despite these promising innovations, there has
been a great deal of controversy over
bioengineered foods. Some scientists believe
genetic engineering dangerously tampers with
the most fundamental natural components of life;
that genetic engineering is scientifically unsound;
and that when scientists transfer genes into a
new organism, the results could be unexpected
and dangerous. But no long-term studies have
been done to determine what effects GMO foods
might have on human health.54
Genetically Modified Foods
The term GM food refers to crop plants created
for human or animal consumption using the latest
molecular biology techniques. These plants are
modified in the laboratory to enhance desired
traits such as increased resistance to herbicides
or improved nutritional content.55 Genetic
modification of plants occurs in several stages:

1.

An organism that has the desired


characteristic is identified and the specific gene
producing this characteristic is located and the
DNA is cut off.

2.

The gene is then attached to a carrier in


order to introduce the gene into the cells of the
plant to be modified. Mostly plasmid (piece of
bacterial DNA) acts as a carrier.

3.

Along with the gene and carrier a


'promoter' is also added to ensure that the gene
works adequately when it is introduced into the
plant.

4.

The gene of interest together with carrier


and promoter is then inserted into bacterium, and
is allowed to reproduce to create many copies of
the gene which are then transferred into the plant
being modified.

5.

The plants are examined to ensure that


they have the desired physical characteristic
conferred by the new gene.

Benefits of GM Foods
The application of biotechnology in agricultural
production promises to overcome the major
constraints being faced in farming such as insect
pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could
substantially improve yields in developing
countries where pest damage is rampant and
reduce the use of chemical pesticides. Crop
plants which have been genetically engineered to
withstand the application of powerful
herbicides57 using genes from soil bacteria
eliminates the time-consuming and not costeffective physical removal of weeds by tilling. The
herbicides to which the GM crops are tolerant are
"broad spectrum" weedkillers, which means they
can be sprayed over the entire field, killing all
plants apart from the GM crop. Herbicide-tolerant
crops include transgenes providing tolerance to
the herbicides (glyphosate or glufosinate
ammonium). These herbicides kill nearly all kinds
of plants except those that have the tolerance
gene. Another important benefit is that this class
of herbicides breaks down quickly in the soil,
eliminating residue carryover problems and
reducing adverse environmental impacts.58
Some plants are genetically engineered to
withstand cold climates such as GM strawberries
or soybeans, expressing the anti-freeze gene of
arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco
and potato with anti-freeze gene from cold water
fish. Crops could also be genetically modified to
produce micronutrients vital to the human diet
such as the "golden rice" genetically modified to
produce beta-carotene, which can solve Vitamin A
deficiency and prevent night blindness in preschool children. Other efforts to enhance
nutritional content of plants include the genetic
modification of canola to enhance Vitamin E
content or better balance fatty acids, cereals for
specific starch or protein, rice for increased iron
to reduce anemia, and plant oils to adjust
cholesterol levels. There are also food crops
engineered to produce edible vaccines against
infectious diseases that would make vaccination
more readily available to children around the
world. For example, transgenic bananas
containing inactivated viruses protecting against
common developing world diseases such as
cholera, hepatitis B and diarrhea, have been

154

The genetically modified plants are bred


with conventional plants of the same variety to
produce seed for further testing and possibly for
future commercial use. The entire process from
the initial gene selection to commercial
production can take up to ten years or more.56

6.

produced. These vaccines will be much easier to


ship, store and administer than traditional
injectable vaccines.59
Overall, biotechnology is perceived as having the
potential to either help or hinder reconciling of
the often opposing goals of meeting the human
demand for food, nutrition, fiber, timber, and
other natural resources. Biotech crops could put
more food on the table per unit of land and water
used in agriculture, thus resulting in decreased
land and water diverted to human uses.
Increasing crop yields and reducing the amount
of cultivated land necessary would also reduce
the area subject to soil erosion from agricultural
practices, which in turn would limit associated
environmental effects on water bodies and
aquatic species and would reduce loss of carbon
sinks and stores into the atmosphere.60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM
crops to human health and environment, there
emerged controversial issues concerning GM
foods.
In 1999, it was found that genetically engineered
foods can have negative health effects. Based on
scientific studies, these foods can unleash new
pathogens, contain allergens and toxins, and
increase the risk of cancer, herbicide exposure,
and harm to fetuses and infants.61 Independent
studies conducted went as far to conclude that
GM food and feed are "inherently hazardous to
health."62
A widely reported case is that of the Brazil nut
gene expressed in soybean in order to increase
the methionine content for animal feed. The
protein was subsequently shown to be an
allergen and the product was never marketed.
Genetically modified foods can introduce novel
proteins into the food supply from organisms that
are never consumed as foods, which may pose a
health risk. This may elicit potentially harmful
immunological responses, including allergic
hypersensitivity.63
A feeding experiment conducted by Dr. Arpad
Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural
insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and
immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its
expressed product but from the damage caused
by the insertion of the transgene, probably due to
insertional mutagenesis."64 If confirmed, Pusztai's
conclusions will reinforce concerns that gene

The use of antibiotic resistance marker (arm)


gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully
spliced into the host organism, is another cause
of grave concern among scientists.
These arm genes might unexpectedly recombine
with disease-causing bacteria or microbes in the
environment or in the guts of animals or humans
who eat GM food, thus contributing to the
growing public health danger of antibioticresistance of infections that cannot be cured with
traditional antibiotics (e.g., new strains of
salmonella, e-coli, campylobacter and
enterococci).66However, recent advances in
genetic engineering indicate that use of such
selection markers is likely to diminish with the
anticipated development of alternative types of
marker genes.67
Increased cancer risk is another critical issue in
the consumption of GM foods. A growth hormone
genetically modified to stimulate milk production
in cows was found to elevate levels of IGF-1
(insulin-like Growth Factor-1, identical versions of
which occurs in cows and humans) in cow's milk
by 80%. IGF-1 is reported to be a key factor in
prostate cancer, breast cancer and lung
cancer.68 Dr. Samuel Epstein of the University of
Illinois warned of the danger of high levels of IGF1 contained in milk cows injected with synthetic
bovine growth hormone (rBGH), which could be a
potential risk factor for breast and
gastrointestinal cancers.69
Glyphosate, the active ingredient in Monsanto's
Roundup herbicide, has been found to worsen
modern diseases. A report published in the
journalEntropy argues that glyphosate residues,
found in most commonly consumed foods in the
Western diet courtesy of genetically engineered
sugar, corn, soy and wheat, "enhance the
damaging effects of other food-borne chemical
residues and toxins in the environment to disrupt
normal body functions and induce disease."
Another research demonstrated a connection
between increased use of Roundup with rising
autism rates in the US.70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment
in many ways such as contaminating non-GMO
plants, creating super weeds and super pests,
harming non-target species, changing soil
microbial and biochemical properties, and

155
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insertion itself may create new toxins; it will also


implicate the toxin commonly used in other
genetically engineered crops - the Bt toxin which,
Pusztai says, is also a lectin.65

threatening biodiversity.
There are two primary types of technology so far
deployed: insect resistance (Bt) and herbicide
tolerance (HT). Both have drastic modes of action
to kill the target species at high
efficiency. Bt crops contain a toxin lethal to
certain insects, and Bt sprays have been used by
organic farmers as a last option to deal with
certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up
resistance to Bt, thereby rendering the organic
spray ineffective.71 Lab and field tests also
indicate that common plant pests such as cotton
bollworms, living under constant pressure from
GE crops, will soon evolve into "superpests"
completely immune to Bt sprays and other
environmentally sustainable biopesticides.72 In
the case of HT, the technology involves the
combined use of a chemical herbicide and a GM
plant. The herbicide is generally a broad
spectrum herbicide (commonly glyphosate or
glufosinate) which kills weeds while leaving the
crop plant alive as it is genetically engineered to
be resistant to the herbicide. The herbicide acts
to inhibit an essential enzyme that is found in all
plants and as a result is able to eliminate all
weeds whereas most conventional herbicides are
selective in their action and target a limited
number of weeds. Concern has been raised
regarding over-reliance on use of one or two
herbicides in increased amounts over time which
leads to the emergence of herbicide resistant
weeds. Also, the transfer of an herbicideresistance gene into a weed can convert it into a
superweed. Pests and weeds will emerge that are
pesticide or herbicide resistant, which means that
stronger, more toxic chemicals will be needed to
get rid of the pests.73
It is a well-accepted fact that genetically
engineered plants can move beyond the field
sites and cross with wild relatives.74 It is by nature
a design of plants to cross pollinate to spread
genes further afield. Maize, oil seed rape, sugar
beet, barley, among others, are wind and insect
pollinated, allowing pollen to travel large
distances. In GM crop fields, pollen drift and
insect pollination create obvious problems for
nearby non-GM or organic crops.75 GM maize
could cross-pollinate neighboring non-GM or
organic maize crops. Maize pollen can travel at
least 500-700 meters and still be viable and
distances of several kilometers have even been
reported.76 But many experiments showed
varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while
in Oklahoma it was 500 meters. In crop species
that are outcrossers, many environmental factors
influence the maximum pollination distance such

The StarLink incident is also a widely reported GM


fiasco. In June 2000, Starlink, a genetically
modified yellow corn which contains the
pesticide Bt in every cell, was found in white corn
tortilla chips in Florida, USA. Starlink had been
approved for animal feed but not for human
consumption due to concerns about dangerous
allergic reactions. The Starlink incident is often
cited to illustrate how difficult it is to keep
genetically modified crops from spreading.79
This gene flow to wild species is particularly
alarming to environmentalists. The wild species
from which our agricultural plants originate are
an important genetic resource for further plant
breeding if, for example, there is a requirement
for improved resistance to climate change or
plant pests. Future plant breeding could be
jeopardized if transgenes spread into these
resources. Similarly, agriculture in the centers of
origin could be permanently damaged if
transgenes spread into regional
landraces.80 Invasive species can replace a single
species or a whole range of species, and they can
also change the conditions within ecological
systems. Crossing can cause losses in the genetic
information of the original species, a reduction in
genetic diversity and an ongoing incremental
change of genetic identity in the original plants. It
is hard to predict which species will become
invasive.81 Indeed, GM crops could threaten the
centers of crop biodiversity or outgrow a local
flora to the detriment of native species.82
Bt gene in genetically modified crops might be
toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into
the wind, dusting nearby plants and trees.
Concern has been expressed about the potential
toxicity of the Bt toxin in corn pollen to the
monarch butterfly because initial laboratory

156
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as the size of pollen grains, the humidity in the


air, and the wind speed.77Brinjal is usually selfpollinated, but the extent of cross-pollination has
been reported as high as 48% and hence it is
classified as cross-pollinated crop. The cone-like
formation of anthers favors self-pollination; but
since the stigma ultimately projects beyond the
anthers, there is an ample opportunity for crosspollination. The rates of natural cross-pollination
may vary depending on genotype, location, and
insect activity. The extent of outcrossing has been
reported from 3 to 7% in China and from 0 to
8.2% (with a mean of 2.7%) at Asian Vegetable
Research Development Centre; however the
Indian researchers have reported 2 to 48%
outcrossing in brinjal varieties in India.
Outcrossing primarily takes place with the help of
insects.78

studies showed increased mortality in larvae.


However, in another study it was believed that it
is unlikely that a significant risk to those
butterflies exists.83
On the effect of transgene crops on soil, one
study investigated CrylAcc and CpTI proteins and
their effects on microbial properties and enzyme
activities. Results showed that there was
persistence of said proteins in soil under 4-year
consecutive cultivation of transgenic cottons. Soil
microbial biomass carbon, microbial activities,
and soil enzyme activities (except urease and
phosphodiesterase) significantly decreased in soil
under transgenic cottons.84
In another review, it was stated that the direct
effects of the plant that has been modified is of
the most concern since the introduction of
transgenic proteins for pest and disease
resistance can involve the production of chemical
substances that are potentially toxic to non-target
soil organisms, including mycorrhizal fungi and
soil microfauna that are involved in organic
matter decomposition. Experimental studies have
shown that the transgenic proteins Bt crystal
toxin and T4 lysozyme, though used to prevent
insect damage to the above ground plant parts,
are not only present in root exudates but that
they maintain biological activity after entering
the soil.85
As to the herbicide glyphosate, recent studies
revealed its negative effects on the soil, which
include compaction and resultant runoff, the
killing of beneficial microbes and bacteria, and
the exhaustion of necessary minerals and
nutrients that plants require. It was found that
glyphosate "locks up" manganese and other
minerals in the soil so that they can't be utilized
by the plants that need them, and that it is toxic
to rhizobia, the bacterium that fixes nitrogen in
the soil. There is likewise evidence showing that
glyphosates can make their way to groundwater
supplies.86 In a study which tested the effects of
the herbicide Roundup on six species of larval
amphibians from North America, it was
demonstrated that when we "use realistic
exposure times and the frequently occurring
stress of predators found in natural ecologic
communities, one of our most widely applied
herbicides (Roundup) has the potential to kill
many species of amphibians." At the same time,
the study noted that Monsanto Corporation has
recently released "an additional formulation of
glyphosate (Roundup Biactive), which contains a
different (but unspecified) surfactant that is
reported to be less toxic."87

Further, the parties presented their respective


expert witnesses who testified on the allegations
raised in the petition concerning damage or
threat of damage to human health and the
environment resulting from the conduct of Bt
talong field trials in the Philippines. The CA
conducted "hot tubbing," the colloquial term for
concurrent expert evidence, a method used for
giving evidence in civil cases in Australia. In a
"hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same
time to explain each of their points in a
discussion with a professional colleague. The
objective is to achieve greater efficiency and
expedition, by reduced emphasis on crossexamination and increased emphasis on
professional dialogue, and swifter identification of
the critical areas of disagreement between the
experts.88
On November 20, 2012, the parties' expert
witnesses testified in a hot tub hearing before the
chairman and members of the CA's Special
Thirteenth Division. Dr. Chakraborty, Dr. Medina
and Dr. Malayang were presented by the
petitioners while Dr. Davies, Dr. Halos, Dr. Ebora
and Dr. Cario appeared for the respondents.
The following are summaries of the expert
witnesses' judicial affidavits:
For Petitioners
DR. DAVIES, Professor of Plant Physiology at
Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural
biotechnology in the US Department of State, and
editor for plant physiology for McGraw-Hill
Encyclopedia of Science and Technology.
In his review of agricultural biotechnology around
the world, he has not encountered any verifiable
report of a field trial of any GM crop that caused
damage to the environment and to human health.
This involves more than 25,000 field trials in 20
years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The
same applies to the commercial cultivation
of Bt crops, which have been grown in ever
increasing quantities worldwide for 16 years and
now comprise the majority of the world acreage
of maize and cotton.

157

Both petitioners and respondents submitted


documentary evidence consisting of reports of
scientific studies and articles in support of their
respective positions on the benefits and risks of
GM plants.

Evidence of Damage or Threat of Damage to


Human Health and the Environment

A recent European Union (EU) report which


concludes that more than 130 EU research
projects covering a period of more than 25 years
of research involving more than 500 independent
research groups, show that consuming foods
containing ingredients derived from GM crops is
no riskier than consuming the same foods
containing ingredients from conventional crops.
The World Health Organization (WHO), American
Medical Association, US National Academy of
Sciences, European Food Safety Authority (EFSA)
all have come to the same conclusion.
GMOs have been proven safe as conventionallybred crops in animal studies. A small number of
poorly done studies purportedly claiming
negative effects, should be viewed with great
caution and have been highly criticized for their
veracity by the overwhelming majority of highly
respected scientists. Many hundreds of studies
show no harmful effects. To date, not a single
rigorous study of GM foods in animals has
revealed any adverse effect; not a single case of
allergy, illness, cancer, or death have been shown
to be associated with foods derived from GM
crops, despite the fact that they have been
consumed by Americans for 16 years.
Recent studies indicate that Bt crops enhance the
ecological diversity in the areas surrounding
those where Bt crops are grown. Over a period of
13 years, cultivation of Bt cotton in China results
in an increase in insect diversity and abundance
and a decrease in crop damaging insects not only
in Bt crop fields but also in surrounding nonBt fields.
GM crops deliver significant yield increases, result
in less exposure to pesticides, improve food
security worldwide, protect against devastating
crop losses and famine, improve nutrition, and
some GM crop techniques help combat climate
change.89
DR. HALOS, Ph.D. in Genetics, University of
California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as
Instructor, Associate Professor, Chief Science
Research Specialist, Research Director at UPLB,
UP Diliman, De La Salle University, Forest
Research Institute now Ecosystems Research and
Development Bureau of DENR and the
Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein
product of the Bt gene CrylAcc in Bt cotton that is
also in Bt eggplant has been found safe by many
food and environmental safety regulatory
agencies such as those in Australia, New Zealand,

GM crops have positive environmental impact.


Currently commercialized GM crops have reduced
the adverse impacts of agriculture on biodiversity.
The use of Bt crops has significantly reduced the
use of pesticides, and also increased farmer
incomes.90
DR. EBORA, Ph.D. in Entomology, Michigan State
University; B.S. Agriculture and M.S. Entomology
(Insect Pathology/Microbial Control), UPLB; Postgraduate trainings in microbiology and
biotechnology, Osaka University, Japan, and
Intellectual Property Management and Technology
Transfer, ISAAA AmeriCenter, Cornell University,
USA. Director, and Research Associate Professor,
National Institute of Molecular Biology and
Biotechnology (BIOTECH), UPLB; Philippine
Coordinator of the Program for Biosafety
Systems; former Executive Director, Philippine
Council for Industry, Energy and Emerging
Technology Research and Development, DOST;
former Chair, Biosafety Committee, DOST; and
was a Member of the Institutional Biosafety
Committees of UPLB and International Rice
Research Institute (IRRI); and was extensively
involved in the isolation, bioassay or efficacy
testing and development of Bt as microbial
insecticides for the control of Asian corn borer
and mosquito larvae at BIOTECH.
The contained field trial experiments, among
others, were designed to address concerns on
cross-pollination or horizontal gene transfer,
pollination distances, harm to beneficial
organisms, and development of insect resistance.
To prevent cross-pollination, an isolation distance
of 200 meters from other areas where eggplants
are grown or wild relatives are present, was
observed, and with five (5) rows of nontransgenic eggplants that serve as pollen trap
plants. As to the flight distance of honeybees
reaching 4 kilometers, what was not mentioned is
the viability of pollen after it was shed and
travelled at a certain distance. Numerous

158

Since 2002, BPI has granted 95 biosafety permits


for field trials. Of these 70 field trial permits were
for Bt corn, cotton and eggplant. No adverse
effect of any of these Bt crop field trials have
been reported. No report of adverse effects
of Bt crop field trial exists. All claims of adverse
health and environmental effects of Bt crops has
not been scientifically validated. The yearly
expansion of GM crop areas in both the
developing and industrialized countries is an
attestation of the preference of farmers and the
economic benefits that accrue to them.

USA, Canada, Brazil, China, India, Mexico,


Argentina, South Africa, Japan and EU.

literatures have shown that isolation distances


much less than 200 meters is sufficient to
prevent cross-pollination. Two studies are cited:
Sekara and Bieniasz (2008) noted that crosspollination at a distance of 50 meters was nonexistent; and the Asian Vegetable Research and
Development Center (AVRDC) indicated that
eggplants produce perfect flowers which may be
cross-pollinated but self-pollination is more
common, the extent of natural crossing depends
upon insect activity and this can be avoided by
isolating each variety by 20 meters or with
another tall flowering plant. The isolation distance
imposed by DA-BPI is 1 Ox the recommended
isolation distance; the 200 meters distance was
found sufficient for pure seed production in India
(the same recommendation by Chen [2001] of
AVRDC foundation for seed production purity
standards); field studies in 2 locations in India
have shown that at a distance beyond 30 meters
no more outcrossing could be detected. Taking all
these data into account, the 48% outcrossing
being raised by petitioners is most likely for
adjacent plants and therefore not a valid
argument for the on-going field trials.
The Bt talong will not directly affect beneficial
organisms like pollinators, predators and
parasites of insect pests because it is toxic only
to caterpillars or insects belonging to Order
Lepidoptera (butterfly and moths). The selective
toxicity of Bt protein in Bt talong is partly due to
the fact that the gut physiology of these insects is
very different from caterpillars, and not all
caterpillars are affected by it. There is a
significant number of literature on Bt protein's
selectivity and specificity.
As to the development of insect resistance, this is
not possible during the multi-location field trials
for Bt talong because of low selection pressure
and limited exposure of the insect pest to Bt
talong. Insect resistance is not unique to GM
crops as it is a commonly observed biological
reaction of insect pests to control measures like
insecticides. In the event Bt talong is approved
for commercialization and will be widely used by
fanners, this concern could be addressed by
insect resistance management (IRM); an IRM
strategy should be required prior to the
commercial release of Bt talong.
There is no compelling reason to stop the field
trials; on the contrary they should be allowed to
proceed so that scientists and researchers will be
able to generate valuable data and information
which will be helpful in making informed
decisions regarding the usefulness of the
technology.91

He is concerned with how GMOs are being


introduced for commercial-scale use (as against
being used for academic research) in the
Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic
resources of the country; (b) how they may cause
an imbalance of predator-prey relationships in
ecosystems, so that certain species might
dominate ecological niches and erode their
biodiversity and ecological stability; (c) how they
may erode the ability of farmers to control their
genetic resources to sustain their cropping
systems; and (d) how much are present biosafety
protocols able to safeguard the long-term
ecological and economic interests of the
Philippines as a particularly biodiversity-rich
country and which is, therefore, highly sensitive
to genetic pollution; to the extent that its
biodiversity is its long-term equity to advances in
biotechnology, the most robust measures must
be taken so that such resources will not be lost.
Being a highly biodiversity-rich country, biosafety
measures in the Philippines must be adopted
using a 3-stage approach: Stage 1 - Develop
criteria for biosafety measures; meaning, first,
adopt a set of standards for determining the level
of robustness of biosafety measures and
protocols that would be acceptable in the
particular case of the Philippines; include required
scoping and internal and external validity
requirements of impact and safety assessments;
Stage 2 - Using the criteria produced in Stage 1,
develop biosafety measures and protocols to be
adopted in the Philippines; and Stage 3 - Apply
the protocol with the highest rigor.
Biosafety must be a public affair involving a
broad spectrum of the Filipino state rather than
its considerations being restricted only to specific
professionals and sectors in the country;
biosafety must be based on an enactment of
Congress and open to challenge and adjudication
against international laws; provisions must be

159

DR. MALAYANG III, Ph.D. in Wildland Resource


Science, University of California at Berkeley; M.A.
Philosophy, M.A. International Affairs (Southeast
Asia Studies major in Economics), Ohio
University; AB Philosophy, UP Diliman; former
Undersecretary of Environment and Natural
Resources; served as Environmental Science
representative in the National Biosafety
Committee of the Philippines and participated in
the drafting of the Philippines Biosafety
Framework; and student, lecturer and advocate of
biodiversity, food security, biosafety and
environmental policy.

made to make it a crime against humanity to


recklessly erode and weaken genetic resources of
our people.92

For Respondents

DR. MEDINA, Ph.D. in Environmental Biology,


University of Guelph, Canada; M.S. (Insect and
Plant Ecology) and B.S. Agriculture, UPLB;
National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings
and seminars, both local and abroad; served as
member in international agricultural assessment
sponsored by Food and Agriculture Organization
(FAO), United Nations Environment Program
(UNEP), WHO, and the World Bank; worked on a
project for development of resistance to corn
borer in 1981 at the Institute of Plant Breeding in
UPLB, and served as researcher and later
Associate Professor of Environmental
Management of the UP Open University.
Based on her studies and extensive experience,
the Bt talong field testing poses the following
risks or hazards: (a) While natural Bt sprays used
in organic farming have little effect on non-target
organisms because the bacterial 'pro-toxin' is in
an inactive state and only becomes toxic when
processed and reduced in the gut of certain
(targeted) species of insect larvae, in
contrast, Bt plants contain an artificial,
truncated Bt gene and less processing is required
to generate the toxin because the toxin is already
in its active form. It is therefore less selective,
and may harm non-target insects that do not
have the enzymes to process the pro-toxin, as
well as the pests for which it is intended;
(b) Bt proteins from natural Bt sprays degrade
relatively quickly in the field as a result of
ultraviolet light and lose most toxic activity within
several days to two weeks after application.
In Bt crops, however, the Bt toxin is produced by
the internal system of the plants thus nondegradable by mere exposure to sunlight and
generated throughout the entire lifespan of the
plant; (c) Bt talong can also affect the
environment by harming important or beneficial
insects directly or indirectly. Genetically
engineered Bt eggplant, like other Btcrops, could
be harmful to non-target organisms if they
consume the toxin directly in pollen or plant
debris. This could cause harm to ecosystems by
reducing the numbers of important species, or
reducing the numbers of beneficial organisms
that would naturally help control the pest species;
(c) The evolution of resistance to Bt crops is a
real risk and is treated as such in ecological
science throughout the world. If enough
individuals become resistant then the pest control
fails; the pest becomes abundant and affects crop
yield. Granting the pest control practice is
successful, it may also simply swap one pest for

Eggplant is 48% insect pollinated thereby any


field release or field testing of genetically
modified Bt talong will eventually lead to
contamination of non-genetically modified
eggplant varieties. Insects, particularly
honeybees, can fly as far as 4 kilometers and
therefore the 200 meters perimeter pollen trap
area in the confined field testing set by BPI is not
sufficient. And once contamination occurs,
genetic cleanup of eggplant or any other plant is
impossible. Moreover, intra-specific gene flow
from Bt talong to other varieties and populations
of eggplants should be examined, as cultivated
eggplant (Solanum melongena) can cross breed
with feral populations of S. melongena, and it is
possible that cultivated varieties can revert to
wild phenotypes. Additionally, there is likely to be
natural crossing between Bt talong and wild
relatives. Hybridization with perhaps as many as
29 wild relative species needs to be evaluated
carefully and the consequences of any
hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests
of the Government of India, in his decision for
moratorium of Bt Brinjal, listed potential
contamination of eggplant varieties as one of the
reasons why the release of Bt Brinjal was not
allowed. Dr. Andow of the University of Minnesota
also published an 84-pages report on the
Environmental Risk Assessment of Bt Brinjal, and
among his conclusions is that several
environmental risks were not considered and
nearly all the risk assessment done were
inadequate. He concluded that until the risks
were understood or managed, there seems to be
little reason to approve Bt Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry,
B.S. (Honors in Chemistry), Calcutta University;
Molecular Biologist, presently Principal Scientist
and Head of the Gene Regulation Laboratory in
the Council of Scientific and Industrial Research Indian Institute of Chemical Biology (CSIR-IICB);
Member, Governing Body and Executive
Committee of the state council of Biotechnology,
Government of West Bengal and Chairman of the
Biotechnology group of the state council of
Science and Technology, Government of West
Bengal; Visiting Professor of the National Institute
of Science, Technology and Development (CSIRNISTAD); citizen of India and resident of Kolkata,
India.

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P

another, a phenomenon known as secondary pest


outbreak. Several studies have shown that other
pest insects are filling the void left by the
absence of the one (or very few) insect pests
that Btcrops target, and this is now the problem
with Bt maize.

GMO is a classic example of "paradoxes of


consequences", where human actions have
unintended consequences, which are in direct
opposition to what was intended. The difference
in controlled laboratory condition and standards,
and real life open field level micro and macroenvironment pushes the advantage towards the
target and non-target living system, with time.
The pest resistance to Bt toxin and development
of herbicide tolerance (HT) in weeds is just a
matter of time. The decade long experience
in Bt and Ht genes amply proves this point. If we
ignore this now - we are manufacturing a global
environmental disaster - which will be a crime
against humanity. There is no way to recall these
GMO from the environment.
Even the short term benefits of GM agriculture
are not scale neutral, or location-independent. It
will help the monopoly agribusiness and the
expenses of monopolistic competition or
cooperative organic farming. Hot climate and rich
biodiversity is detrimental towards the
effectiveness of Bt constructs, and helpful
towards unintended gene flow. Moreover, the
genetic manipulation is no way fail safe or exact.
Shotgun techniques are being adapted, aided by
focused laboratory based screen of traits - rather
than the host or the full natural product. The GM
labeling is avoided to cover up this major fault.
The tendency to avoid the available risk
assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of
this technology, even in a batter form, the
foremost task is to establish rigorous test and
assessment procedures. There are excellent
available tools of preteomics, transcriptomics,
and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why
they are not being employed? In fact, there is not
a single centre to test GM products on behalf of
the corporate GM Agribusiness house. Thus, low
level, long term toxicity of GM foods are yet to be
tested. I believe the time has come to establish a
standardization facility to carry out such test
facility in any country before giving permission to
GM trial or
cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing
held on November 20, 2012, are herein
reproduced:
Dr. Cario:chanRoblesvirtualLawlibrary
x x x This is to clarify something with the BT
Talong and the BT Talong has its substance. It is
not supposed to be consumed at the moment still
under field trial, so it is not supposed to be eaten
at the moment. It has not been released for food

Chairperson: So, actually, there is no full scientific


certainty that it does not cause any harm
pertaining to health?
Dr. Cario: BT Talong per se, has hot been fully
evaluated yet that is why it is undergoing trials. If
reporting of the BT toxin in BT Talong is CrylAcc,
there are numerous studies that had been
actually published on relative safety
of CrylAcc protein and it is actually considered as
an additional protein and the various reviews can
be seen in the OECD Digest of risk assessments
on CrylAcc protein. Alternatively, if you are
looking at the possibility of harm coming from the
introduced protein as yet, we have not done a full
blown assessment of it as of the moment. But we
look at the protein sequence and with a
comparison of its sequence with other sequences
in the data basis to see if it is similar to this
amino acid sequence of other known toxins and,
so far, I have actually ... in my affidavit, I have
actually seen personally that it is not closely
related to any of the known toxins that are found
into its system.
Chairperson: So, in effect, we can not really say
that BT Talong is perfectly safe for human
consumption?
Dr. Cario: Right now it is not meant to be
consumed by human at this point. Let me just
clarify one point. When any GM material is
supposed to be introduced for food and for feed
and before it is actually utilized for life skill
production, it goes through several steps. The
first step is actually the "lab", laboratory work
and it is actually tested in this clean-houses,
rolled-out confined limited field test and then it
goes tobutyl abyss of field tests where it is like
generating more and more informations. We are
still early on in this pathway, so we are only in the
confined field test and, at the moment, the thing
is that it is still being tested. The focus is on its
efficacy after doing a preliminary assessment of
the possible pathological and ecological effect,
and that is the pathway that has been
recommended by so many academics as well as
scientific institutions as well. And, that has been a
tract followed by almost all the genetically
modified crops that is being introduced in the
market today, but at the moment BT Talong is not
yet a commodity. It is not yet being evaluated as
a commodity.

161
P

nor for feed and so in the context of a confined


field test, it has supposed to have it out in the
field in a very controlled manner and any produce
that comes out from that area is supposed to be
destroyed or kept from further safety and
analysis only.

Chairperson: So, no one in this country has yet


eaten this BT Talong?
Dr. Cario: No, it has not been eaten, as far as I
know. Even in India it has not been consumed by
human beings because it has not been introduced
as a commodity.
Chairperson: But what is the ultimate purpose of
growing BT Talong? It is not for human
consumption, of course?
Dr. Cario: If it passes the safety assessments.
That there is always a peak condition that, if it
would not to be evaluated in a step of the way
much like to evaluate any new product that is
coming into the market evaluation, goes on a
step-by-step and at least day-to-day basis.
Dr. Davies: Your Honor, may I interject, may I
suggest with your permission? I would just like to
make a little bit of explanation.
Chairperson: Proceed.
Dr. Davies: I would like to address "BT" as a
compound which is distinct from a plain in
"Talong". First of all, I think of the name BT toxin
is very fortunate. It is really a protein. A protein is
an essential constituent of life. It is an essential
constituent of our food. In the human body, and
in the body of other animals, this protein is under
the same as any other protein in food. It has no
effect on the human body. This has been shown
for many, many years, knowing BT
Talong but BT has been a constituent of "maize"
in commercial production for 16 years.
Dr. Davies: x x x So it has been in corn for 16
years after substantial trials. It has been
consumed by Americans in corn products and by
any other people who in[g]est American maize
corn products x x x. There is not a single case of
illness or toxicity or allergenicity that can be or
that has been associated with this protein and,
therefore, any food containing this protein has
been declared by authorities in all the countries
that was mentioned by my colleagues, including
the European Union and the United States x x x
to be as safe as any food derived from the same
plant species not containing this gene. I hope that
explains a little bit about what it is.
Chairperson: Are you aware of a study, Dr.
Davies, released on September 20 of this year,
saying that Monsanto's genetically modified corn
is linked to cancer?
Dr. Davies: Yes. Are you referring, your Honor, to

Dr. Chakraborty: Your Honor, may I butt in? It is


wrong that proteins can not be toxins. Think
about the snake venoms. They are poisons, so
whether it is protein or not that is not the
question. So proteins obviously venoms and
proteins and enzymes and they are poisons so
protein can be a poison so that is now the point
at all to be considered. The second thing is, yeah,
low level toxins long term in[g]estion of
this BT toxin in human or in any other animal
have not been tested. So that is true so we do not
know direct consumption of this, because notice
have been turned down, that is the objective fact.
The third point is about the "American Corn", and
if I can give you such anecdotes, "American GM
Corn" are not labelled, how do you know that?
What is its effect? What is its toxicity? And,
obviously, there are more than a hundred of
papers showing and published in very good
journals. I can give many references which have
shown the detrimental effect of BT Toxin.
xxxx
Chairperson: But before having this BT talong
scheduled and allowed for field testing, is it not
proper that it should be first determined whether
this food product is really safe for eating or not?
Dr. Cario: There is an initial assessment that is
generally done and according to the Codex
Alimentarius of the WHO, the thing that you do at
this early stage of development is to compare the
sequence of the protein that is being introduced
with published sequence of allergens, as well as
toxicants and toxins. So that has been done. Then
you have to look for instability under heat
conditions because there is seldom do we heat
grow eggplants, so is it stable under heating. Is it
stable in the presence of digestive juices? And, if
the answer is "yes", there is at least fair certainty,
a fair assurance that it is likely to be safe but
then you start thinking of what other component
not present in the product, does this. For
example, any product that we consume today has
something that is bad for you, otherwise, you will
not see it right now. Otherwise all the different
herbivores will be eating it up, right? It will be
extinct if it does not have anything to protect
itself and, so, the thing is one, to quantify how
much of that has changed when you lead the
genetic modification. So "Talong" has been known
to have Solanine and glycoalkaloids whose level
well have to quantify. We have not done that yet.

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a publication by a French Scientist named GillesEric Seralini? I think this is one of the publications
by Seralini's group. Dr. Seralini's work has been
refuted by International committees of
scientists...

They have not submitted the data for that and


this as secondary metabolize whose relative
concentration will change depending on the
environment to which you actually place the
system.
Dr. Chakraborty: x x x In india, we have a very
bad experience x x x in location field trial with
the BT Cotton. You known that BT Cotton was
introduced in India through the back door black
market entry. During the field trial, some of those
seeds were taken out and given to the farmers for
commercial cultivation to black market. Monsanto
goes well, Monsanto's BT Cotton, like Monsanto,
did not sue now apparently sue the company and
they compelled the government that farmers
wanted those things and there was high ... how
they pressurized the government. Now, in case
of BT cotton is one thing, but BT Eggplant is
completely a different thing. That is why [the]
Supreme Court in India has taken a very strong
stand and, now, the parliamentary committee in
India. The Supreme Court has also taken steps
stand with the field trial. The first thing in field
trial we had to see that whether there is a
definite need of this kind of intervention, because
the eggplant is a very common vegetable in this
part of the world. There are so many hundreds of
varieties here, these are the origins of these
varieties of this kind of vegetable. It is cheap. It is
available everyday. So why you go on changing if
there is no crisis in cultivating the eggplants at
present. Therefore, when you give it to this
patented seeds technology, its prices will
increase, lot of restrictions had to be deal. So,
who will consume this high price eggplant. Many
will be exported, that was why the proponents
are looking into it. But, basically, that is the thing
that in case of BT Brinjal, neighbor partisan is
being given. There is a moratorium in India from
the Supreme Court and from the government side
on field trial of BT Brinjal. Now, if x x x
the BT Eggplant is being taken to the Philippines,
we guess, to get in as a bypass, and who will
guarantee that it will not go to the farmers?
Justice Antonio-Valenzuela: And, I was wondering
in the conduct of the tests, the field testing x x x
what would be the effect of the planting .... of the
existence of the genetically modified organism,
for example, on insects, on the soil, on the air?
And then I was thinking, does this have this
particular protein that result[s] due to the genetic
modification? Is it ... how is it expelled, for
example how does it go into the environment? Or,
on the other hand, how does it go inside and out
of human system so that does it disintegrate or is
it just there forever? I am very curious, sir. You
have to educate me.

xxxx
Dr. Davies: At the scientific level, it gets changed
by alkalinity of the insect gut and reacts with
specific receptors of the cells of the walls of the
insect gut. But, this is very specific to the gut of
these insects namely the "Lepidoptera" and some
"coleoptera" which are the butterflies and the
beetles but it will only affect if they try to eat the
plant. Now, you are asking us if what is the effect
on the environment. x x x I would like to cite x x x
a recent paper published in the journal "Nature" x
x x the most prestigious scientific journal in the
world, x x x published in "Nature" in June this
year and this is the result of a study of "insects"
in BT Cotton fields in China in 17 locations for 14
years of a long period study. And these scientists
revolt that they show a marked increase in the
abundance of three types of generalist arthropod
predators (ladywings, lacewings and spiders) and
a decrease in abundance of aphid pests
associated with widespread adoption of Btcotton.
And they are referring to China and they conclude
that such crops, x x x BT crops, can promote
beneficial control services in agricultural
landscapes. And, it also showed that these effects
extend beyond the field. So, essentially x x x they
found that there were more insects than in
conventionally grown cotton and the insect
diversity was greater surrounded than being
detrimental to an agriculture ecosystem
such BT cotton falls beneficial.
Dr. Chakraborty: May I interject, your Honor. Now
he is citing one paper they are. But in "Nature,"
there was another news article, "Battlefield". One
stream ecologist in United States itself, in a
university, she has studied the effect of
growing BT Corn in the field and what is the effect
on the stream ecology, the west water, what is
happening to other insects, insects in which it is
getting that BT toxin will not go. Yes, she has

163
P

Dr. Davies: x x x Okay, the DNA is in every cell of


the eggplant and, so, a very small amount to
protein produced by each cell will be
this BT protein. It does not get into the
environment in general. A very small amount
might be in the pollen or in the leaves that fall to
the ground but it has been shown to be broken
down in the soil by organisms so it will not exist
in the environment. The only way that it is going
to get into animals or insects is if they eat the
fruit and this is what an insect that the "talong"
fruit and shoot borer will be trying to. But, if it
eats it, it reacts with its intestine so that they
become toxic to the caterpillar but this is very
specific to the digestive system of the caterpillar.
It does not affect bees. It does not affect animals.
It does not affect humans.

found that stream ecology...


xxxx
Dr. Chakraborty: Why was it published in "Nature"
when that stream ecologist from Loyola
University Chicago in Illinois published that paper,
published that article in PNAS or Proceedings of
the National Academy of Sciences, a prestigious
journal? Now, they have to desert her. She was
abused, so her file was taken out. So people
started e-mailing, threatening her. So "Nature"
has to publish that. How dirty the field has
become so they entitled it "Battelfield." If
anybody produces any evidence that BT Toxin or
GM Technology is doing any harm to the
environment then it will be battered by the entire
English lobby so there is worst the situation. But
National Academy of Sciences in United States
has taken a strong decision and, in last year,
there were six publications that published where
strong evidences are being produced about the
environmental and ecological damage cause[d]
by this technology. So, that is the case.
Dr. Davies: Can I respond to that, your Honors?
Dr. Malayang: I think Filipinos should be able to
talk also here.
Chairperson: Can we give a chance to Dr.
Malayang?
Dr. Malayang: x x x My concern is on the process
and participants in vetting the safety of GM crops,
not necessarily the intricacies of the science
involved in genetic modification per se which, I
think our international friends, would like to focus
on. x x x
One, I am concerned with the fallibility of
technology, x x x even if it is much founded on or
produced from the most robust sciences, a
technology could fail to be as useful as it was
intended or its use lead to an [unintended harm
to humans and the environment. This is so
because science, by nature, as many scientists
will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge
illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants
in Japan x x x. The best science and the best
technology did not necessarily translate to
absolute safety.
Second example, the Union Carbide Plant in
Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what
happened. x x x Union Carbide's [hurry] to set up
a plant to take advantage of a large pesticide

And finally, the most common example would be


the unintended effects of medicine. x x x
Medicines are technologies intended to do good
but, with even the best science and the vetting
processes using rigid safety and risk assessment
methods, they still could cause side effects
entirely undesired and many of which can cause
chronic or acute threats to human life. This
includes the use of "DDT" that was used to
control lice among soldiers after the II World War
which, after all, proved to be very bad.
x x x I am also concerned with the fragility,
fragility of the Philippine environment as the
place and context, the particular place and
context of the introduction of BT crops like BT
talong. x x x the Philippines is among the world's
biologically rich countries. x x x So, many of our
insects are not even fully known. We do not know
how they all behave to influence the transfer of
genetic materials from plants to other plants. We
do not fully know what we do not know about the
intricate interactions between plants and
between insects and other living things that
define the universe of our healthful and balanced
ecology. The universe of our healthful and
balanced ecology certainly go beyond specific
crops. I am concerned that, absent a full as
against partial understanding of the intricate web
of genetic flows and interactions among plants,
animals and other living things in our wet and
tropical ecosystems, it will require extraordinary
care to tamper with any one element of this swirl
of interrelationships. This is notwithstanding the
seeming preponderance of evidence of safety in
other countries and environment that are
certainly not the same as ours. x x x we must be
extra careful because the effects might be
irreversible. Introducing a genetically modified
plant x x x could cause a string of changes across
many plants that, like the green revolution or in
the case of medicine and the two other cases
cited above, could turn out and only to be
realized much later to be harmful to humans and
the environment more than they were intended

164

The Third example is the green revolution, x x x


involves, however, the wide [use] of synthetic
chemicals for fertilizer and pesticides that were
[at] the time hailed as wonder technologies.
Many scientists in the world at that time argued
for their wider use but they later turned out to
harm people, soils and water. They prove good
then bad, so bad that scientists today are using
their ill effects as justification for adopting
alternative technologies to get us out of the
synthetic chemical regime in agriculture.

market in India to help the country's farmers led


to a massive and deadly safety failure.

to be useful. x x x let us ensure that we adopt in


the country a biosafety vetting protocol that is:
(1) sensitive to our high biodiversity this is a
particular condition in the Philippines; and (2)
tested for error levels that are acceptable to or
which can be tolerated by our people. My affidavit
states a three-stage approach to this. x x x the
tests that we will be doing is a test process
acceptable to all as well rather than merely
concocted or designed by just a few people x x x
must be a product of wider citizens' participation
and reflect both scientific and traditional
knowledge and cultural sensitivity of our people.
It is in the NBF after all, x x x introducing BT
Talong in the Philippines must be decided on the
grounds of both science and public policy and
public policy, in this case, must involve full public
disclosure and participation in accepting both the
potential gains and possible pains of BT Talong.
The stakes, both positive and negative, are so
high that I believe BT Talong would require more
public scrutiny and wider democratic decision
making beyond the [realm] of science. x x x for
the sake of our country and our rich biodiversity x
x x prudence requires that maximum efforts be
exerted to ensure its safety beyond the
parameters of science and into the sphere of
public policy. For to fail in doing so what might be
highly anticipated to be beneficial may in some
twist of failure or precaution and prudence and
failure for due diligence to establish the safety
of Bt Talong beyond reasonable doubt, the BT
Talong may turn out to be harmful after all. This
we certainly do not want to do. I submit these
views to the Court.
xxxx
Dr. Davies: x x x another thing I would like to
point out to the Court is, if you come into a
market in the Philippines and you see nice Talong,
it has probably been treated with various
insecticides. So, there has been insecticide spray
on your tips in your crops which are going to be
harm on your farmers, your farmer's children, the
insect populations and also dangerous to the
consumers as well. By contrast, Bt Talong, if it is
adopted, the BT has been shown to be beneficial
to the insects and the environment and also has
been shown not to be toxic in food. Therefore, we
are changing a highly toxic chemical application
for a much more benign modern technique that is
beneficial to the environment and beneficial to
the consumers. That is my comment with the
views just made by my Filipino colleagues, your
Honors.
Dr. Malayang: x x x You know, in ecology and, I
am sure you are aware of this, an expansion of
anyone population or a reduction of that

Dr. Saturnina Halos: Well, the use of pesticide in


the eggplant, right now, is very much abused. x x
x In terms of the use of Bt Talong, then, that kind
of misuse is not going to happen x x x. Now, in
the Philippines, we have a very strict highly
monitored field testing and I think Dr. Malayang
knows about that because he was one of those
who prepared the guidelines for the field testing.
So that is not going to happen, it is a very strict
regulatory system. We are known for that,
actually, and...
xxxx
Dr. Saturnina Halos: No, no. It does not happen
because we have a risk management plan x x x.
xxxx
Dr. Halos: x x x As far as do we know what is
happening after we have given approval, yes, we
are monitoring. We are monitoring as far as BT
cornis concerned. We are monitoring,
continuously monitoring, not only for the
beneficial insects but also the effects that is
continuing, we are also continuing to monitor the
weeds, weed population. In weed we decide to
spray...
Dr. Malayang: And why is this, ma'am, why are
we monitoring? Because they could be harmful?
Dr. Halos: No we have to know what is happening.
Dr. Malayang: Yes, why? Because if you are sure
that they are safe, if you are sure that they are
safe, why monitor?

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population it would still be both not beneficial to


the healthful and balanced ecological health of
the ecosystem. So to say that because the
population of insects are exploded and the
diversity of insects exploded as a result of this
particular intervention is not necessarily good.
That is my first point. The second one, you
mentioned x x x the "talong" is laden with
pesticide. The same pesticide were advised by
scientists from the USAID before for us to use in
this country because this is how to expand our
production of food. This was part of the green
revolution, the systemic use of pesticides and
fertilizer. Now, of course, they were misused, I
can guarantee that but, again, if that be the case,
in the case of pesticide why can it not be in the
case of BT that it can also be misused? x x x we
are talking here not of the science or of the
technology but on the policy aspect of the
adoption of the technology. As I said, I am talking
about the bakery not of a baked-bread.

Dr. Halos: Well, we are going to give you the data


for that because you keep on asking, you know,
you asked for a long term and we are going to
give you that complete data.
xxxx
Dr. Medina: I would like to raise several issues
because I feel they are misleading sometimes. Dr.
Davies mentioned that the BT protein is a protein,
therefore, it is safe. Are you sure that all proteins
are safe, Dr. Davies? Are you aware of antinutrients and allergens and other kinds of protein
x x x it is a misleading generalization. Secondly, I
would like to say also that, when you say
that BT crops is beneficial to insect population
but, how about humans? But, let me tell and
inform the Honorable Justices also that, in
agriculture, there can be, the pests are there to
reduce the yield. There are also diseases so, that
this Bt is only controlling one kind of pest and, in
my monitoring of BT corn as an example to this 2
years after the commercialization in 2003, at first
planting in 2003, the corn is attacked by about a
dozen insect pests and six major diseases.
The Bt corn was attacked a "stem rot", a fungal
disease. And, in this case in eggplant, there are
many fungal diseases, "phomopsis" x x x So in
that case it is not field safe that you will not be
using pesticide anymore with BT eggplant. When
you use the BT eggplant, assuming that there is
no more insect pests x x x There are many other
methods of control and, therefore, do not assume
that you do not use pesticide therefore, BT is the
only solution. That is also a risky and wrong
generalization or statement, x x x Dr. Halos x x x
says that field tests are safe. I intend to disagree
with that. Safe to what? Especially to
contamination. If I may use this picture of the
field testing of the Bt eggplant x x x it was
encircled with cyclone wire with a diameter of
something like approximately 10 cm. by 7 cm.
hole. While bees that can pollinate that, the size
is about 1 cm. in length and .5 cm. in diameter of
the insect. The bees and, in that case, they can
easily get in and get out and when they settle
into the flowers and snip nectars and the fall of
the pollen then they can bring out the pollen to
contaminate outside that. In fact, even assuming
that the fence is very small in size of the mess,
the holes, still the insects can fly above that
fence because the fence is only about 5 feet in
height. So, in that case it is not safe. Some
arguments say that "well the pollen will be dead"
but, according to this technical manual of the
Training Workshop On Data Collection for
Researchers And Collaborators of Multi-Location
Trials of Fruit and Shoot Borers Resistant
Eggplant, that is the Bt Eggplant produced by the
Institute of Plant Breeding in UPLB who is one of

xxxx
Dr. Medina: x x x There is no data on the
contamination so how come they argue, how can
they conclude that it is safe when they have not
monitored any potential pollen flow by insect
mitigated or insect mediated flow pollen? So, in
that case, the conclusion or the statement is
really beyond what their data may be is if their
data is about safety.
xxxx
Dr. Ebora: x x x x I hope that we will be able to
look at the experimental design and you will see
that all the things are properly addressed, our risk
assessment was done step by step, x x x I beg to
disagree with my friend Dr. Medina because it is
becoming ... we are confusing 2 things. We are
not referring to contained trial. We are referring
to confined field trial and in the design of this
particular experiment, you have yourBT eggplant,
your non-BT eggplant so that you can compare
the performance with the 2 crops. And, on design,
you have 5 rows of plantBT eggplants that will
serve as a pollen trap. When we say pollen trap is
that it just open the pollen from the transgenic. It
is going to be trapped by those plants, 5 rows,
and then, after that, you have a space of 200
meters surrounding the field which is the isolation
distance. That means no eggplant should be
present in that particular distance because that is
the isolation distance that is found to be safe, x x
x we know that Bt protein is very specific x x x
effective only against caterpillar x x x if they are
eaten by other organism, they are not affected
because it is very specific. The gut of the larva is
very alkaline while the gut of other insects is
likely acidic and, in that case, it does not have
any harmful effect, x x x So another thing is we
are saying that it seems to be ridiculous that you
are saying that honeybee is going to fly from the
fence and the size were even indicated. I would
like to indicate that, that is not the purpose of the
fence. It is not to contain the insects. It is to
prevent vandalism which is quite, unfortunately,
being done by other groups who are against the
technology. x x x We should be able to have our
own space, our own time, considering the given

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the main researchers the datas, here say


according to "Rasco", cited by Dr. Narciso, is
that the pollen can live 8 to 10 days pollen by
ability at 20 to 22 degrees centigrade, with a
relative humidity of 50 to 55. x x x Meaning to
say, that pollen can survive. This can fly as fast
as something like 60 kilometers per hours so it
just take may be 3 minutes and it can travel 4
kilometers and 4 kilometers is the effective flying
distance of a bee in their normal foraging.

regulation. Follow them. But our experimentation


not be destroyed because it is only then that we
will be able to get the valuable data that is
needed for an informed decision. Without that we
will not be able to proceed and I hope we can
discuss this based on the merits of the field trial,
not from any other concern because the writ
ofkalikasan is about the effect of field trial in the
environment.
Dr. Medina: Mr. Justice, can I give this immediate
counteract to the one statement of Dr. [Ebora]?
He said that the "CrylAcc" is specific to
caterpillars and, in fact, only some kinds of
caterpillar, some species, if you can read by
chemical and by physical research
communications this is Volume 271, pages 54-58,
authored by Vasquez Pardonnet, published in
2000, publication under letter (b), "CrylAcc
protoxin" binds to the mucosal surface of the
mouse small intestine. Small intestine ay
mammal po iyan so, meaning, it is a proxy animal
for safety [testing] to humans because we are
also mammals so, the mice are usually the
mammals 12 years ago, the data has been
already there that there is binding site,
therefore it is not only specific to insects but also
to mammals. x x x he is saying that, by working
on the natural BT is the same as the
transformed BT it is not true because the
natural BT has 1155 "base pairs" of nucleic acids.
And the transformed GM Crop contains a
fragment of that BT gene which is only half of
that. And the mechanism, by the way, x x x the
natural toxin is broken into smaller pieces inside
the intestine of the insects because it is alkaline
in terms of its system "ph" and for humans acidic.
So it does not work. But, because the
transformed BT is already half, almost half of the
normal or natural[ly] occurring BT protein, it is
already activatedand, in that case, that is the
reason why there is a test and immediate effect
to non-insect, meaning, to mammal, so that is the
explanation of scientist doing studies on that
aspect.
x x xx
Dr. Chakraborty: The scientists have 3 problems:
One, the sparks, we have a tunnel vision; the
second, fear vision; x x x I will give some
example. Yes, BTtoxin, was it really good
biological control agent? But it is a completely
different gene when you produce it into an edible
plant inside genetically. So, these are 2 different
things. What will happen? We are scared that the
efficacy, the use of BT toxin as a spray, as
biological control agent, will be vanished because
now there will be resistance against those
in BT toxin, x x x resistance is coming very

Justice Antonio-Valenzuela: How much is the


increase in crop yield? x x x
Dr. Halos: x x x The average increase yield is
about 24% and that is for corn. And this data is
actually taken by our own Filipino scientists, Dr.
Lluroge and Dr. Gonzales.
Dr. Malayang: x x x my question is for Ma'am
Nina. I have not been up to date lately on the
production of corn so, you mean to say that corn
production in the country has gone up and,
because of that, you are saying that 24% and the
income of farmers had gone up as well? Do you
mean to say that the price of com had also gone
up as a result of the increase in the volume of
com production in the Philippines?

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quickly, just like antibiotic resistance, x x x The


second thing, I have asked many plant biologists
this simple question, simple honest question. Do
you know any plant that can kill a bee or a moth?
No! There is no way, why? Because those are the
"pollinators". Plant never kills a bee or a moth
that goes against nature, x x x So, nature, for
thousands of years, farmers help select or adopt
edible non-toxic plants. And, now, with the high
science we are converting them, non-toxic edible
plant into a toxic plant. So not only toxic for the
human, for the root microorganisms, x x x Those
eggplants are not only for humans to consume.
So human effect, we do not know but what will be
the effect? Who will mind the effect? Is it the
animal which goes through it? x x x in India, x x x
farmers x x x while growing BT cotton x x x the
leaves and other they use to attract animals to
eat. x x x they found suddenly one thing that
the BT cotton plants are not touched by those
buffalos, those cows, those [boars], but they can
distinguish which is BT and non-BT. x x x and
when their animals started dying in some cases,
they always blame, it is this animal which has
eaten that BT? x x x these are [going] against
nature. Only few edible seed plants are there and
we are converting one safest plant into a
poisonous and toxic plant and what is the effect
on the root microorganisms on the degrading
animals and other? We do not know. That hard
thing is the tunnel vision, the confined field trial,
x x x why implement this confined field trial? Is
this safe? Why do they have to do this x x x these
things do good for a normal hybrid that is
something but for the gene concept we cannot
follow the same separation rules, same rules? So
those are used, those separation distincts, those
parameters are used not for the gene. So, which
is the safe field trial protocol for the gene plants?
We do not know. So there goes against [the] writ
ofkalikasan.

Dr. Halos: Well, the price is dictated by the


market.
Dr.Malayang: That is precisely the point.
Dr. Halos: Yes.
Dr. Malayang: x x x I am just bringing, hopefully
to the attention of the Court, that, when you talk
of a technology such as GM Com or GM Talong
affecting market there is also not only the
regulatory but economic regime that is attendant
to it that makes adjustments. So it may not be
harmful to humans because we will not come out
when we eat it but it might be harmful to the
economy of a particular agricultural crop. x x x
Dr. Ebora: x x x there are a lot of local studies
being conducted now by entomologists from
[UPLB] and those are independent studies. And,
precisely, this is to determine the effect on
natural enemies and the different insects x x x
and some of those are already available, x x x
you will be able to protect the environment only if
you know how to have a proper information in
making the decision. So, again, I am saying that,
in field trial, you will be generating a lot of
information that you will be able to use in making
a wise decision and informed decision.
x x x I would like to correct the impression lodged
by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not
affected by BT because they are adult insects.
The only one that is affected are actually the
larva, not even the pupa. So, we would like that
to be clear because it might create confusion.
The other thing in resistance, x x x even
conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a
continuous breeding program. So, it is a natural
mechanism by an organism as mode of
ad[a]potation. x x x are you telling us that we are
going to stop our breeding work because,
anyway, they are going to develop resistance. I
think it is a wrong message x x x.
The other thing is in terms of the study cited by
Dr. Medina regarding the "binding." In toxicology,
you can have the effect if you have, for example,
the insects, you have a receptor. The toxin will
bind into the receptor. Toxin has to fall and then
the toxin has re-insert into the membrane. If you
eliminate one of those steps you do not have any
toxicity. So, that means binding by itself will not
be toxicity. It is a wrong impression that, since
you have binding, there will be toxicity. It is
simply wrong because, the actuality that it should
bind, it should fall then, it should insert, and it is

x x x regarding the protein, x x x do you know a


lot of proteins of another characteristics and that
is why you have to characterize them and you
have to separate the protein that are causing
problem and protein that are not causing
problem. That is why you have allergen and, as
explained by Dr. Cario, you have to check the
sequence. x x x
Dr. Chakraborty: x x x the field trial wanted to
basically go to the protocol. This is the efficacy,
the efficiency of the production not that much
into the safety. You have to look into it carefully
that how much will get this efficacy, not the
safety to that extent x x x. Second point x x x
there is this already mentioned that European
Union there is no consensus, x x x they have
published and submitted the systemic list of
genetically modified crop need for new approach
in risk assessment. So that is what is needed.
There is another article, how does scientific risk
assessment of GM crop fit within wider risk
analysis, x x x This is genetic engineering. The
production process is very precise in selecting the
inserted gene but not in its enhancement, x x x
they are never looking into it. The second thing,
they do not look into that from the laboratory
condition to what is the real life situation. They do
not take that into account x x x so this
assessment protocol has to be modified or
changed, x x x in the IAASTD or International
Assessment of Agricultural Knowledge, Science
and Technology for Development. There is a
supreme body, so many nations, so many
experts, scientists x x x. Only sustainable
agricultural practice and that is the only
alternative. This GM technology is not going to
help them x x x In my country also, when
the BT toxin evaluation was there, everybody was
telling that this is pro-poor, this is scale neutral
so, everybody will be benefitted by that. So, we
started questioning, x x x "What are the actual
economic analysis indeed? Just show me". Then,
they come up with an answer. Scale neutral

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The other one is natural BT toxin and activated


toxin. When you were saying protoxin, protoxin is
basically the entire crystal protein. If it is already
inside the gut of the insect it has to be clipped by
the purchase coming from the gut and you have
it activated and you have the toxin. So what you
have in plant is already the toxin since the anther
and the toxin, and the toxin in microorganisms,
the anther which are already clipped by a
purchase are the same. So, to say that they are
different is actually wrong. You are comparing
protoxin and toxin.

a very common x x x. To say that binding is


equivalent to toxicity is simply not true.

means that even small farmers initially


wanted BT cotton and big farmers also
wanted BT cotton. They are partisans. It is not the
economic benefit because, economically, it is not
going to be beneficial so it is very much scale
dependent its benefit. So, only the big farmers,
large farmers and x x x the vegetable field you
never can give separation. Chances you never
can give refuge. The 1/5 of the land given for
growing pests so that you cannot do. So it cannot
help technology. They have developed this
technology for partisan large scale farming to
completely automated for BT technology where
no label will be there. But the failed experiments,
the contracts whose patent will be over within 2-3
years, they are testing them in our country. So
that is the bottom line.
Chairperson: Let us put, probably, a close to this
hot tub proceeding now.
The issue that the Court is really interested to
resolve is whether or not the conduct of the field
trial of BT Talong by the respondents has violated
or has threatened to violate the right of the
people to a balanced and healthful ecology. Is
there absolute certainty that it has not so
violated such right. Because that is the
requirement for applying or not applying the
precautionary principle, x x x
Dr. Cario: Yes. The answer to that is we have not
violated, you know, the right of the people...
Chairperson: But there is no absolute certainty?
Dr. Cario: Well, quite certain, your Honor,
because we have placed all the necessary
measures and they did not show us, you
know, there is no evidence of harm that has been
shown to this Court. There is no evidence at all.
Chairperson: That is your opinion.95 As shown by
the foregoing, the hot tub hearing has not yielded
any consensus on the points of contention
between the expert witnesses, i.e., the safety
of Bt talong to humans and the environment.
Evidently, their opinions are based on contrasting
findings in hundreds of scientific studies
conducted from the time Bt technology was
deployed in crop farming. These divergent views
of local scientists reflect the continuing
international debate on GMOs and the varying
degrees of acceptance of GM technology by
states especially the developed countries (USA,
EU, Japan, China, Australia, etc.).
Before proceeding to the current state of global
GMO research, we briefly address the strong
objection of petitioners to the CA's reliance on the

Seralini's findings created an uproar and the


study was expunged from the publication in
November 2013 even though the Editor-in-Chief
found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by
his work and further conducted similar laboratory
experiments. Critics faulted the experimental
method, saying the number of rats studied was
too small and their diet was skewed when
compared with their natural food intake. But over
300 scientists condemned the retraction, they
said that the retraction lacked scientific integrity
and requested to reinstate the study. Last June
2014, Seralini's controversial study
was republished and has passed a third peer
review arranged by the journal that is
republishing the study,Environmental Sciences
Europe. The republished version contains extra
material addressing criticisms of the original
publication and the raw data underlying the
study's findings, and accompanied by a separate
commentary by Prof. Seralini's team describing
the lobbying efforts of GMO crop supporters to
force the editor of the Food and Chemical
Toxicology to retract the original publication.97
The aforesaid incident serves to underscore the
crucial role of scientists in providing relevant
information for effective regulation of GMOs.
There can be no argument that "[s]ince scientific
advice plays a key role in GMO regulations,
scientists have a responsibility to address and
communicate uncertainty to policy makers and
the public."98
GMOs: The Global Debate
The uncertainties generated by conflicting
scientific findings or limited research is not
diminished by extensive use at present of GM
technology in agriculture. The global area of GM
crops has reached over 175 million hectares in

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research conducted by Prof. Seralini, the French


scientist whose study was published in
September 2012 in Food and Chemical
Toxicology, which was criticized as a
"controversial feeding study." Seralini studied rats
consuming Monsanto's Roundup Ready treated
corn for two years (using the same kind of rats
prone to tumors used by Monsanto in obtaining
original approval for its product and the same
methodologies, but did it for 2 years which is
longer than the 90-day experiment period done
by Monsanto). The rats formed massive
cancerous tumors. All three test groups of rats,
with 10 rats in each group, died more frequently,
suffered from liver problems, and had a
pronounced number of tumors specifically with
grotesque mammary and testicular tumors.96

2013, more than a hundredfold increase from 1.7


million hectares in 1996.99 However, the
worldwide debate on safety issues involving GM
foods continues.
It has been pointed out that the crux of the
controversy surrounding GMOs lies in the very
nature of the technology itself. The process of
combining inter-species genes, which is called
recombinant DNA technology, does not have the
checks and balances that are imposed by nature
in traditional breeding. Because of this there is a
risk of genetic instability. This means that no one
can make any accurate predictions about the
long-term effects of GMOs on human beings and
the environment. Extensive testing in this regard
is either very expensive or impractical, and there
is still a great deal about the process that
scientists do not understand.100
The basic concepts for the safety assessment of
foods derived from GMOs have been developed in
close collaboration under the auspices of the
Organization for Economic Co-operation and
Development (OECD) and the United Nations
World Health Organization (WHO) and Food and
Agricultural Organization (FAO). The OECD's
group of experts on biosafety recommended
conducting the safety assessment of a GM food
on case-by-case basis through comparison to an
existing food with a long history of safe use. Thus,
the concept of substantial equivalence was
developed that is widely used by national and
international agencies, including the US Food and
Drug Administration (FDA), the WHO, OECD and
the FAO.101
"Substantial equivalence embodies the concept
that if a new food or food component is found to
be substantially equivalent to an existing food or
food component, it can be treated in the same
manner with respect to safety (i.e., the food or
food component can be concluded to be as safe
as the conventional food or food
component)."102 The safety assessment of a
genetically modified food is directed by the
results of a comparison between the genetically
modified food and its conventional counterpart. It
follows a stepwise process aided by a series of
structured questions. Factors taken into account
in the safety assessment include:
identity;
source;
composition;
effects of processing/cooking;
transformation process;
the recombinant DNA (e.g. stability of insertion,
potential for gene transfer);
protein expression product of the novel DNA:

potential intake and dietary impact of the


introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the
assessment of foods derived from genetically
modified plants.104 However, the concept of
substantial equivalence as the starting point of
risk assessment was criticized for being
"unscientific and arbitrary" and "intentionally
vague and ill-defined to be as flexible, malleable,
and open to interpretation as possible." It is
likewise argued that "comparisons are designed
to conceal significant changes resulting from
genetic modifications," "the principle is weak and
misleading even when it does not apply,
effectively giving producers carte blanche", and
that there is insufficiency of background
information for assessing substantial equivalence.
A paper presented at a WHO workshop pointed
out that the main difficulty associated with the
biosafety assessment of transgenic crops is the
unpredictable nature of transformation. This
unpredictability raises the concern that
transgenic plants will behave in an inconsistent
manner when grown commercially.105
The method of testing GM foods was further
described as inadequate, as currently the testing
procedures consist almost exclusively of specific
chemical and biochemical analytical procedures
designed to quantitate a specific nutrient or a
specific toxin or allergen. It was noted that in
actual practice, the investigator compares only
selected characteristics of the genetically
engineered food to those of its non-genetically
engineered counterpart. These testing schemes
are viewed as completely incapable of detecting
unsuspected or unanticipated health risks that
are generated by the process of genetic
engineering itself. Hence, clinical tests are
recommended because only such tests have the
broad specificity and relevance to human
physiology needed to detect the wide range of
allergens and toxins that might result from
unexpected side-effects of the genetic
engineering process.106
In another review article, it was pointed out that
since a genetic modification is aimed at
introducing new traits into organisms, the result

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effects on function;
potential toxicity;
potential allergenicity;
possible secondary effects from gene
expression or the disruption of the host DNA or
metabolic pathways, including composition of
critical macro, micro-nutrients, anti-nutrients,
endogenous toxicants, allergens, and
physiologically active substances; and,

will always be a different composition of genes


and proteins. The most reasonable interpretation
therefore is that a food derived from a GMO is
considered substantially equivalent to its
traditional counterpart if the genetic modification
has not resulted in intended or unintended
alterations in the composition of relevant
nutrients and inherent toxicants of the organism,
and that the new genes and proteins have no
adverse impact on the dietary value of the food
and do not therefore pose any harm to the
consumer or the environment. It was thus
concluded that establishing substantial
equivalence is not a safety assessment in itself,
but is a pragmatic tool to analyze the safety of a
new food, and hence in the testing of new foods,
the latest scientific methods have to be used. All
conceivable efforts to protect consumers from
health risks should thus be made, and at the
same time, consumers should be adequately
informed about the real extent of risks and
hazards.107
The GMO global debate has so intensified that
each side has accused the other camp of
mounting "paid advocacy" and criticizing studies
adverse to their respective positions as flawed or
unscientific. Both the agri-business industry, and
groups opposed to GMOs including the organic
farming industry, had utilized enormous
resources and funds for lobbying and media
campaigns locally and internationally.
What appears to be highlighted in the promotion
of GM crop production is the marked reduction in
the use of harmful chemical pesticides.108 The
resulting increase in crop yields grown on
relatively small parcels of land is also regarded as
a solution to the problem of feeding a fast
growing world population. Proponents of GM
biotechnology insist that GM foods are safe to
humans and the environment based on scientific
studies. On the other hand, anti-GM activists
disseminate adverse results of recent studies
confirming the health and environmental hazards
of genetically engineered crop farming. Also,
some countries have maintained a firm stance
against genetically engineered crops or GM foods,
such as France and Austria. Over the years,
however, accumulated evidence of the dangers of
GMOs, as well as unrealized socio-economic
benefits, has been increasingly recognized by the
scientific community.
That GE farming increases crop yield has been
debunked by new studies proving the contrary. In
the article, "GM Crops Do Not Increase Yield
Potential," the Institute for Responsible
Technology cited reports from actual field studies

Evidence for the "yield drag" of Roundup Ready


soybeans has been known for over a decade with the disruptive effect of the GM
transformation process accounting for
approximately half the drop in yield.
Based on a comprehensive evaluation of yield
since the introduction of commercial GM crops,
the International Assessment of Agricultural
Knowledge, Science and Technology (IAASTD)
noted that GM crop yields were "highly variable"
and in some cases, "yields declined".
The Union of Concerned Scientists' 2009
report Failure to Yield, based on published peerreviewed studies conducted by academic
scientists using adequate controls, concluded
that genetically engineered herbicide tolerant
soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has
only marginally improved yields. Traditional
breeding outperforms genetic engineering hands
down.
In developing countries, crop failure can have
severe consequences as illustrated in India,
where a large number of cotton farmers, unable
to pay back high interest loans, have committed
suicide. Several investigations have implicated
the unreliable performance of Btcotton as a major
contributor.
Bt cotton was overrun by pests in Indonesia and
China. In South Africa, farmers faced pest
problems and no increase in yield. The 100,000
hectares planted in 1998 dropped 80% to 22,500
by 2002. As of 2004, 85% of the original Bt cotton
farmers had given up while those remaining had
to be subsidized by the government. Similarly in
the US, Bt cotton yields are not necessarily
consistent or more
profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms
of addressing food security; rather, it supports
corporate control and impedes common persons'
access to adequate food. The root cause of
hunger is not a lack of food, GM critics say, but a
lack of access to food. The poor lack money to
buy food and lack of land on which to grow it. It is
essential to follow sustainable traditional farming
practices that keeps food production in the hands
of small-scale farmers, thereby reducing
corporate control.110

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Bt corn took longer to reach maturity and


produced up to 12% lower yields than non-GM
counterparts.

in different countries revealing downward figures


for Bt crops, as summarized below:

As regards the existing uncertainties of


potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and
Ecological Evaluation towards Long-term Effects)
study of 2009,111 made for the European
Commission, analyzed more than 700 scientific
publications from all over the world about GMOs
and their potential effects on environment
including biodiversity, and received contributions
to online surveys from 100 to 167 invited
environmental experts. This study declared the
following uncertainties:
increased fitness of GM plants;
outbreeding depression after hybridization with
wild relatives;
outcrossing between related species and the
fate of a transferred GM trait;
altered flower phenology;
altered fecundity, increasing seed (gene) flow;
increased frequency of horizontal gene flow;
resistance development of pests;
effects on non-target organisms;
effects on non-target organisms due to altered
nutritional composition of the GM plant;
effects on non-target organisms due to
accumulation of toxic compounds;
effects on rhizo sphere microbiota;
effects on symbiotic non-target organisms;
changes in soil functions caused by GM traits;
effects on biological control;
altered use of agrochemicals;
indirect changes in susceptibility of crops
against pathogens;
adverse effects on agro-biodiversity;
indirect effects in fertilizer use;
potential changes in landscape structure;
increased production of greenhouse gases;
increased mineral nutrient erosion and fertilizer
leaching;
altered chemical attributes of soil fraction;
emerging of stacked events;
the necessity of regional differentiation of risk
assessments.112
A critical observation was made on the argument
that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The
fact emphasized was that experiments designed
to clarify potential adverse effects on health or
the environment are nearly absent in peerreviewed journals. Scientific uncertainty, omitted
research areas, and lack of basic knowledge
crucial to risk assessments have become
apparent. The present uncertainty warrants
further research and it has been demonstrated
that there is a risk of bias relying on hypotheses
that dominate mainstream science. There is
therefore a need for independent research that is

While existing literature on health effects of GM


foods indicates that they are generally safe, and
similar conclusions have been drawn by
government agencies and scientific organizations
such as FAO/WHO and Society of Toxicology, a
growing number of independent scientists have
spoken strongly against such generalizations
from limited research mostly sponsored by
biotech companies.

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without prejudice and unbiased by economic and


professional interests.113 In another article it was
noted that the clinical trials carried out to ensure
that negative externalities do not affect humans
and the environment are conducted by the same
private firms that created the products, raising
conflict of interest concerns.114

India
o High risk future for agbiotech: "Monsanto could
be another disaster waiting to happen for
investors"
2. GM crops posing escalating problems on
the farm
o Transgenic lines unstable: "most cases of
transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds
emerged in North America
o Glyphosate-tolerant weeds plague GM cotton
and soya fields, atrazine back in use

In 1999, the Open Letter from World Scientists to


All Governments signed by 815 scientists from 82
countries expressed that they are extremely
concerned about the hazards of GMOs to
biodiversity, food safety, human and animal
health, and demanded a moratorium on
environmental releases in accordance with the
precautionary principle. They are opposed to GM
crops that will intensify corporate monopoly,
exacerbate inequality and prevent the essential
shift to sustainable agriculture that can provide
food security and health around the world, and
called a ban on patents of life forms and living
processes which threaten food security, sanction
biopiracy of indigenous knowledge and genetic
resources and violate basic human rights and
dignity.115

o Bt biopesticide traits threatening to create


superweeds and bt-resistant pests

On May 10, 2003, dozens of prominent scientists


from various disciplines banded together as an
Independent Science Panel on GM at a public
conference in London. On June 15, 2003, they
released a Final Report116 as their contribution to
the National GM Debate in UK. In a summary117 of
the final report, these scientists declared the
following:

4. GM crops not safe

The Case for a GM-Free Sustainable World - A


Summary
Why GM-Free?
1. GM crops failed to deliver promised
benefits
o No increase in yields or significant reduction in
herbicide and pesticide use
o United States lost an estimated $12 billion over
GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in

3. Extensive transgenic contamination


unavoidable
o Extensive transgenic contamination found in
maize landraces in remote regions of Mexico
o 32 out of 33 commercial seed stocks found
contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile
per hour wind speed is unexceptional
o There can be no co-existence of GM and nonGM crops

o GM crops have not been proven safe: regulation


was fatally flawed from the start
o The principle of 'substantial equivalence', vague
and ill defined, gave companies complete licence
in claiming GM products 'substantially equivalent'
to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing
findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and
small intestine of young rats were attributed to
the transgenic process or the transgenic
construct, and may hence be general to all GM
food
6. Dangerous gene products are
incorporated into food crops

o Food crops are increasingly used to produce


pharmaceuticals and drugs, including cytokines
known to suppress the immune system, or linked
to dementia, neurotoxicity and mood and
cognitive side effects; vaccines and viral
sequences such as the 'spike' protein gene of the
pig coronavirus, in the same family as the SARS
virus linked to the current epidemic; and
glycoprotein gene gpl20 of the AIDS virus that
could interfere with the immune system and
recombine with viruses and bacteria to generate
new and unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male
sterility, promoted as a means of preventing the
spread of transgenes, actually spread both male
sterility and herbicide tolerance traits via pollen.
8. Broad-spectrum herbicides highly toxic to
humans and other species
o Glufosinate ammonium and glyphosate, used
with herbicide tolerant GM crops that currently
account for 75% of all GM crops worldwide, are
both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological,
respiratory, gastrointestinal and haematological
toxicities, and birth defects in humans and
mammals; also toxic to butterflies and a number
of beneficial insects, to larvae of clams and
oysters,Daphnia and some freshwater fish,
especially the rainbow trout; it inhibits beneficial
soil bacteria and fungi, especially those that fix
nitrogen.
o Glyphosate is the most frequent cause of
complaints and poisoning in the UK, and
disturbances to many body functions have been
reported after exposures at normal use levels;
glyphosate exposure nearly doubled the risk of
late spontaneous abortion, and children born to
users of glyphosate had elevated neurobehavioral
defects; glyphosate retards development of the
foetal skeleton in laboratory rats, inhibits the
synthesis of steroids, and is genotoxic in
mammals, fish and frogs; field dose exposure of
earthworms caused at least 50 percent mortality
and significant intestinal damage among
surviving worms; Roundup (Monsanto's
formulation of glyphosate) caused cell division
dysfunction that may be linked to human
cancers.

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o Bt proteins, incorporated into 25% of all GM


crops worldwide, are harmful to many non-target
insects, and some are potent immunogens and
allergens for humans and other mammals

9. Genetic engineering creates superviruses


o The most insidious dangers of genetic
engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal
gene transfer and recombination, the main route
to creating viruses and bacteria that cause
disease epidemics.
o Newer techniques, such as DNA shuffling, allow
geneticists to create in a matter of minutes in the
laboratory millions of recombinant viruses that
have never existed in billions of years of
evolution
o Disease-causing viruses and bacteria and their
genetic material are the predominant materials
and tools of genetic engineering, as much as for
the intentional creation of bio-weapons.
10. Transgenic DNA in food taken up by
bacteria in human gut
o Transgenic DNA from plants has been taken up
by bacteria both in the soil and in the gut of
human volunteers; antibiotic resistance marker
genes can spread from transgenic food to
pathogenic bacteria, making infections very
difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in
the gut and to jump into the genome of
mammalian cells, raising the possibility for
triggering cancer
o Feeding GM products such as maize to animals
may carry risks, not just for the animals but also
for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal
gene transfer
o Evidence suggests that transgenic constructs
with the CaMV 35S promoter could be especially
unstable and prone to horizontal gene transfer
and recombination, with all the attendant
hazards: gene mutations due to random insertion,
cancer, re-activation of dormant viruses and
generation of new viruses.
13. A history of misrepresentation and
suppression of scientific evidence
o There has been a history of misrepresentation
and suppression of scientific evidence, especially
on horizontal gene transfer. Key experiments

In 2008, a Global Report119 was released by the


International Assessment of Agricultural
Knowledge, Science and Technology for
Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of
a consultative process involving 900 participants
and 110 countries from all over the world. This
global initiative assessed agricultural knowledge,
science and technology (AKST) in relation to
meeting development and sustainability goals of
(1) reducing hunger and poverty; (2) improving
nutrition, health and rural livelihoods; and (3)
facilitating social and environmental
sustainability. The report concluded that a radical
transformation of the world's food and farming
systems - especially the policies and institutions
that affect them - is necessary if we are to
overcome converging economic and
environmental crises and feed the world
sustainably. It also warned that technologies such
as high-yielding crop varieties, agrochemicals and
mechanization have primarily benefited the
better-resourced groups in society and
transnational corporations, rather than the most
vulnerable ones. In general, the IAASTD found
little evidence to support a conclusion that
modern biotechnologies are well suited to
meeting the needs of small-scale and subsistence
farmers, particularly under the increasingly
unpredictable environmental and economic
conditions tha they face.120

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failed to be performed, or were performed badly


and then misrepresented. Many experiments
were not followed up, including investigations on
whether the CaMV 35S promoter is responsible
for the 'growth-factor-like' effects observed in
young rats fed GM potatoes.
GM crops have failed to deliver the
promised benefits and are posing escalating
problems on the farm. Transgenic
contamination is now widely acknowledged
to be unavoidable, and hence there can be
no co-existence of GM and non-GM
agriculture. Most important of all, GM crops
have not been proven safe. On the contrary,
sufficient evidence has emerged to raise
serious safety concerns, that if ignored
could result in irreversible damage to
health and the environment. GM crops
should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable
agricultural practices have proven beneficial in all
aspects relevant to health and the environment.
In addition, they bring food security and social
and cultural well being to local communities
everywhere. There is an urgent need for a
comprehensive global shift to all forms of
sustainable agriculture.118

More recently, in 2013, the European Network of


Scientists for Social and Environmental
Responsibility (ENSSER), an international group of
more than 90 scientists, academics and
physicians, released a statement that there is no
scientific consensus on the safety of GM foods
and crops.121 The statement122 is herein
reproduced:
10/21/13
Statement: No scientific consensus on GMO
safety
As scientists, physicians, academics, and experts
from disciplines relevant to the scientific, legal,
social and safety assessment aspects of
genetically modified organisms (GMOs), we
strongly reject claims by GM seed developers and
some scientists, commentators, and journalists
that there is a "scientific consensus" on GMO
safety and that the debate on this topic is "over".
We feel compelled to issue this statement
because the claimed consensus on GMO safety
does not exist. The claim that it does exist is
misleading and misrepresents the currently
available scientific evidence and the broad
diversity of opinion among scientists on this
issue. Moreover, the claim encourages a climate
of complacency that could lead to a lack of
regulatory and scientific rigour and appropriate
caution, potentially endangering the health of
humans, animals, and the environment.
Science and society do not proceed on the basis
of a constructed consensus, as current knowledge
is always open to well-founded challenge and
disagreement. We endorse the need for further
independent scientific inquiry and informed
public discussion on GM product safety and urge
GM proponents to do the same.
Some of our objections to the claim of scientific
consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for
human and animal health, a comprehensive
review of animal feeding studies of GM crops
found "An equilibrium in the number [of] research
groups suggesting, on the basis of their studies,
that a number of varieties of GM products (mainly
maize and soybeans) are as safe and nutritious
as the respective conventional non-GM plant, and
those raising still serious concerns". The review
also found that most studies concluding that GM
foods were as safe and nutritious as those
obtained by conventional breeding were
"performed by biotechnology companies or
associates, which are also responsible [for]

Rigorous studies investigating the safety of GM


crops and foods would normally involve animal
feeding studies in which one group of animals is
fed GM food and another group is fed an
equivalent non-GM diet. Independent studies of
this type are rare, but when such studies have
been performed, some have revealed toxic
effects or signs of toxicity in the GM-fed animals.
The concerns raised by these studies have not
been followed up by targeted research that could
confirm or refute the initial findings.
The lack of scientific consensus on the safety of
GM foods and crops is underlined by the recent
research calls of the European Union and the
French government to investigate the long-term
health impacts of GM food consumption in the
light of uncertainties raised by animal feeding
studies. These official calls imply recognition of
the inadequacy of the relevant existing scientific
research protocols. They call into question the
claim that existing research can be deemed
conclusive and the scientific debate on biosafety
closed.
2. There are no epidemiological studies
investigating potential effects of GM food
consumption on human health
It is often claimed that "trillions of GM meals"
have been eaten in the US with no ill effects.
However, no epidemiological studies in human
populations have been carried out to establish
whether there are any health effects associated
with GM food consumption. As GM foods are not
labelled in North America, a major producer and
consumer of GM crops, it is scientifically
impossible to trace, let alone study, patterns of
consumption and their impacts. Therefore, claims
that GM foods are safe for human health based
on the experience of North American populations
have no scientific basis.
3. Claims that scientific and governmental
bodies endorse GMO safety are
exaggerated or inaccurate
Claims that there is a consensus among scientific
and governmental bodies that GM foods are safe,

175

A separate review of animal feeding studies that


is often cited as showing that GM foods are safe
included studies that found significant differences
in the GM-fed animals. While the review authors
dismissed these findings as not biologically
significant, the interpretation of these differences
is the subject of continuing scientific debate and
no consensus exists on the topic.

commercializing these GM plants".

or that they are no more risky than non-GM foods,


are false.
For instance, an expert panel of the Royal Society
of Canada issued a report that was highly critical
of the regulatory system for GM foods and crops
in that country. The report declared that it is
"scientifically unjustifiable" to presume that GM
foods are safe without rigorous scientific testing
and that the "default prediction" for every GM
food should be that the introduction of a new
gene will cause "unanticipated changes" in the
expression of other genes, the pattern of proteins
produced, and/or metabolic activities. Possible
outcomes of these changes identified in the
report included the presence of new or
unexpected allergens.
A report by the British Medical Association
concluded that with regard to the long-term
effects of GM foods on human health and the
environment, "many unanswered questions
remain" and that "safety concerns cannot, as yet,
be dismissed completely on the basis of
information currently available". The report called
for more research, especially on potential impacts
on human health and the environment.
Moreover, the positions taken by other
organizations have frequently been highly
qualified, acknowledging data gaps and potential
risks, as well as potential benefits, of GM
technology. For example, a statement by the
American Medical Association's Council on
Science and Public Health acknowledged "a small
potential for adverse events ... due mainly to
horizontal gene transfer, allergenicity, and
toxicity" and recommended that the current
voluntary notification procedure practised in the
US prior to market release of GM crops be made
mandatory. It should be noted that even a "small
potential for adverse events" may turn out to be
significant, given the widespread exposure of
human and animal populations to GM crops.
A statement by the board of directors of the
American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops
and opposing labelling cannot be assumed to
represent the view of AAAS members as a whole
and was challenged in an open letter by a group
of 21 scientists, including many long-standing
members of the AAAS. This episode underlined
the lack of consensus among scientists about
GMO safety.
4. EU research project does not provide
reliable evidence of GM food safety
An EU research project has been cited

Indeed, the project was not designed to test the


safety of any single GM food, but to focus on "the
development of safety assessment approaches".
Only five published animal feeding studies are
referenced in the SAFOTEST section of the report,
which is dedicated to GM food safety. None of
these studies tested a commercialised GM food;
none tested the GM food for long-term effects
beyond the subchronic period of 90 days; all
found differences in the GM-fed animals, which in
some cases were statistically significant; and
none concluded on the safety of the GM food
tested, let alone on the safety of GM foods in
general. Therefore the EU research project
provides no evidence for sweeping claims about
the safety of any single GM food or of GM crops in
general.
5. List of several hundred studies does not
show GM food safety
A frequently cited claim published on an Internet
website that several hundred studies "document
the general safety and nutritional wholesomeness
of GM foods and feeds" is misleading.
Examination of the studies listed reveals that
many do not provide evidence of GM food safety
and, in fact, some provide evidence of a lack of
safety. For example:chanRoblesvirtualLawlibrary
Many of the studies are not toxicological animal
feeding studies of the type that can provide
useful information about health effects of GM
food consumption. The list includes animal
production studies that examine parameters of
interest to the food and agriculture industry, such
as milk yield and weight gain; studies on
environmental effects of GM crops; and analytical
studies of the composition or genetic makeup of
the crop.
Among the animal feeding studies and reviews
of such studies in the list, a substantial number
found toxic effects and signs of toxicity in GM-fed
animals compared with controls. Concerns raised
by these studies have not been satisfactorily
addressed and the claim that the body of
research shows a consensus over the safety of
GM crops and foods is false and irresponsible.
Many of the studies were conducted over short
periods compared with the animal's total lifespan
and cannot detect long-term health effects.

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internationally as providing evidence for GM crop


and food safety. However, the report based on
this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide
such evidence, from long-term feeding studies in
animals.

We conclude that these studies, taken as a whole,


are misrepresented on the Internet website as
they do not "document the general safety and
nutritional wholesomeness of GM foods and
feeds". Rather, some of the studies give serious
cause for concern and should be followed up by
more detailed investigations over an extended
period of time.
6. There is no consensus on the
environmental risks of GM crops
Environmental risks posed by GM crops include
the effects of Bt insecticidal crops on non-target
organisms and effects of the herbicides used in
tandem with herbicide-tolerant GM crops.
As with GM food safety, no scientific consensus
exists regarding the environmental risks of GM
crops. A review of environmental risk assessment
approaches for GM crops identified shortcomings
in the procedures used and found "no consensus"
globally on the methodologies that should be
applied, let alone on standardized testing
procedures.
Some reviews of the published data on Bt crops
have found that they can have adverse effects on
non-target and beneficial organisms - effects that
are widely neglected in regulatory assessments
and by some scientific commentators. Resistance
to Bt toxins has emerged in target pests, and
problems with secondary (non-target) pests have
been noted, for example, in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally
controversial. Some reviews and individual
studies have associated them with increased
herbicide use, the rapid spread of herbicideresistant weeds, and adverse health effects in
human and animal populations exposed to
Roundup, the herbicide used on the majority of
GM crops.
As with GM food safety, disagreement among
scientists on the environmental risks of GM crops
may be correlated with funding sources. A peerreviewed survey of the views of 62 life scientists
on the environmental risks of GM crops found that
funding and disciplinary training had a significant
effect on attitudes. Scientists with industry
funding and/or those trained in molecular biology
were very likely to have a positive attitude to GM
crops and to hold that they do not represent any
unique risks, while publicly-funded scientists
working independently of GM crop developer
companies and/or those trained in ecology were
more likely to hold a "moderately negative"
attitude to GM crop safety and to emphasize the

7. International agreements show


widespread recognition of risks posed by
GM foods and crops
The Cartagena Protocol on Biosafety was
negotiated over many years and implemented in
2003. The Cartagena Protocol is an international
agreement ratified by 166 governments
worldwide that seeks to protect biological
diversity from the risks posed by GM technology.
It embodies the Precautionary Principle in that it
allows signatory states to take precautionary
measures to protect themselves against threats
of damage from GM crops and foods, even in case
of a lack of scientific certainty.
Another international body, the UN's Codex
Alimentarius, worked with scientific experts for
seven years to develop international guidelines
for the assessment of GM foods and crops,
because of concerns about the risks they pose.
These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160
nations are members, including major GM crop
producers such as the United States.
The Cartagena Protocol and Codex share a
precautionary approach to GM crops and foods, in
that they agree that genetic engineering differs
from conventional breeding and that safety
assessments should be required before GM
organisms are used in food or released into the
environment.
These agreements would never have been
negotiated, and the implementation processes
elaborating how such safety assessments should
be conducted would not currently be happening,
without widespread international recognition of
the risks posed by GM crops and foods and the
unresolved state of existing scientific
understanding.
Concerns about risks are well-founded, as has
been demonstrated by studies on some GM crops
and foods that have shown adverse effects on
animal health and non-target organisms,
indicated above. Many of these studies have, in
fact, fed into the negotiation and/or
implementation processes of the Cartagena
Protocol and Codex. We support the application of
the Precautionary Principle with regard to the
release and transboundary movement of GM

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uncertainty and ignorance involved. The review


authors concluded, "The strong effects of training
and funding might justify certain institutional
changes concerning how we organize science and
how we make public decisions when new
technologies are to be evaluated."

crops and foods.


Conclusion
In the scope of this document, we can only
highlight a few examples to illustrate that the
totality of scientific research outcomes in the
field of GM crop safety is nuanced, complex,
often contradictory or inconclusive, confounded
by researchers' choices, assumptions, and
funding sources, and in general, has raised more
questions than it has currently answered.
Whether to continue and expand the introduction
of GM crops and foods into the human food and
animal feed supply, and whether the identified
risks are acceptable or not, are decisions that
involve socioeconomic considerations beyond the
scope of a narrow scientific debate and the
currently unresolved biosafety research agendas.
These decisions must therefore involve the
broader society. They should, however, be
supported by strong scientific evidence on the
long-term safety of GM crops and foods for
human and animal health and the environment,
obtained in a manner that is honest, ethical,
rigorous, independent, transparent, and
sufficiently diversified to compensate for bias.
Decisions on the future of our food and
agriculture should not be based on misleading
and misrepresentative claims that a "scientific
consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against
GM crops is that expressed by one of our political
analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in
the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x
of the 81 members of the World Future Council
put it, "While profitable to the few companies
producing them, GMO seeds reinforce a model of
farming that undermines sustainability of cashpoor farmers, who make up most of the world's
hungry. GMO seeds continue farmers'
dependency on purchased seed and chemical
inputs. The most dramatic impact of such
dependency is in India, where 270,000 farmers,
many trapped in debt for buying seeds and
chemicals, committed suicide between 1995 and
2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that
the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM
foods and crops.
Bt Brinjal Controversy in India
Brinjal (eggplant) is a major crop and a popular

As in the case of the Philippines, proponents


of Bt brinjal in India, believed to be the origin of
eggplant's diversity, said that if the new
technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields
and greater food availability, can be expected.
But opponents argued, alongside food safety
concerns, that there is a potential for toxic effects
on populations of non-target invertebrates, and
potential replacement of traditional landraces as
farmers may move towards cultivation of a
restricted number of GE forms. In addition to
these issues, there was the additional concern
raised over the transfer of Bt transgenes to nonGE brinjal or its wild relatives, and the
consequences for plant biodiversity.125
Writ petitions were lodged before the Supreme
Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and
Ors, etc. vs. Union of India). The Court formed a
Technical Evaluation Committee (TEC) composed
of experts nominated by the parties to undertake
a comprehensive evaluation of the feasibility of
allowing the open field trials of Bt brinjal and
submit a final report, and in the event the TEC is
unable to submit said final report, it was directed
instead to submit an interim report within the
period set by the Court on the following
issue: Whether there should or should not be any
ban, partial or otherwise, upon conducting of
open field tests of the GMOs? In the event open
field trials are permitted, what protocol should be
followed and conditions, if any, that may be
imposed by the Court for implementation of open
field trials." The Court also directed that the TEC
would be free to review report or studies
authored by national and international scientists
if it was necessary.
In its Interim Report dated October 17, 2012, the
TEC recommended that, in view of its findings, all
field trials should be stopped until certain
conditions have been met. A Final Report126 was
eventually submitted to the Court which noted
weaknesses in the conditions imposed by the
regulatory agencies for conduct of field trials, as
follows: 1) post-release monitoring, an important
aspect of environmental and health safety (if the
GE crop is consumed as food) is not given
adequate attention; 2) the importance of need

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component of food diet in India, an important


ingredient in Ayurvedic medicine, and is of special
value for the treatment of diabetes and liver
problems. The attempted commercial
propagation of Bt brinjal spawned intense debate
and suffered obstacles due to sustained
opposition from local scientists, academicians
and non-government organizations in India.

and socio-economic impact assessment of GM


products as one of the criteria that should be
applied in the evaluation at an early stage; and 3)
need for additional tests not currently done such
as long-term feeding studies for assessment of
chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the
toxicity studies to screen for possible unintended
effects on host physiology. It was recommended
that a moratorium on field trials of herbicide
tolerant crops until the issue had been examined
by an independent committee, and also noted
that said technology may not be suitable in the
Indian socio-economic context due to possible
impact of extensive use of broad spectrum
herbicides on the environmental biodiversity and
smaller average farm size. Examination of the
safety dossier of Bt brinjal indicated certain
concerns on the data, which had not been
addressed in the course of regulatory testing
leading to approval due to lack of full-time
qualified personnel for the purpose. Overall, it
was found that the quality of information in
several of the applications is far below what
would be expected and required for rigorous
evaluation by a regulatory body and is unlikely to
meet international regulatory guidelines.
On the mechanism of CrylAc proteins, the TEC
cited studies showing that it is possible under
certain conditions for CrylAc protein to kill insects
that lack the cadherin receptor. Also, while it is
generally believed that Cry toxins do not exert an
effect on vertebrates as vertebrates lack the
receptor for Cry toxins, two studies (one in mice
and the other in cows) have provided evidence
that Cry proteins can bind to mammalian
intestinal epithelial cells. The report also
discussed the emergence of resistance in insect
pests, health and food safety of Bt transgenics,
and herbicide tolerant crops and their effect on
biodiversity and the environment. Specific
recommendations were made to address the
foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or
diversity has far greater ramifications and
potential for negative impact than for other
species. To justify this, there needs to be
extraordinarily compelling reasons and only when
other choices are not available. GM crops that
offer incremental advantages or solutions to
specific and limited problems are not sufficient
reasons to justify such release. The TEC did not
find any such compelling reasons under the
present conditions. The fact is that unlike the
situation in 1960s there is no desperate shortage
of food and in fact India is in a reasonably secure
position. The TEC therefore recommends that
release of GM crops for which India is a centre of

GMO Field Trials in the Philippines


As earlier mentioned, the conduct of field trials
for GE plants and crops in our country is
governed primarily by DAO 08-2002 and
implemented by the DA through the BPI.
Petitioners EMB, BPI and FPA all maintain there
was no unlawful deviation from its provisions and
that respondents so far failed to present evidence
to prove their claim that Bt talong field trials
violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical
Review Panel (STRP) which, as an advisory body,
was tasked to "evaluate the potential risks of the
proposed activity to human health and the
environment based on available scientific and
technical information." Under DA Special Order
241 and 384 (2002) the STRP membership was
expanded to include "an independent pool of
experts...tapped by the [BPI] to evaluate the
potential risks of the proposed release of GMOs
for field testing, propagation, food, feed to human
health and the environment based on available
scientific and technical information."
DAO 08-2002 supplements the existing guidelines
on the importation and release into the
environment of products of modern biotechnology
by institutionalizing existing operational
arrangements between DA-BPI and the NCBP.
Effective July 2003, applications for field test are
received and processed by DA-BPI, but the
approval process for projects on contained use
remains under the supervision of NCBP. A
mandatory risk assessment of GM plant and plant
products is required prior to importation or
release into the environment. Experiments must
first be conducted under contained conditions,
then the products are tested in field trials the
product is reviewed for commercial release. Risk
assessment is done according to the principles
provided for by the Cartagena Protocol on
Biosafety. Risk assessment is science-based,
carried out on a case by case manner, targets a
specific crop and its transformation event, adopts
the concept of substantial equivalence in
identifying risk, allows review, and provides that
the absence of scientific information or consensus
should not be interpreted to indicate the absence

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origin or diversity should not be


allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition
to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an
indefinite moratorium on its further field testing.
This was done after discussions with scientists,
both pro and anti-GM crops, activists and farmers
across the country.

or presence and level of risk.128


Greenpeace, however, claims there is actually
only a committee of three to five members which
conducts the risk assessment, and is aided by an
informal group, the DA's Biotech Advisory Team
(BAT), of representatives from government
biotech regulatory agencies: BPI, BAI, FPA, DENR,
DOH and DOST. It also assails the government
regulatory agencies for their refusal to open to
scrutiny the names and qualifications of those
incharge of regulation and risk assessment, and
for allowing the entry and use of all GMO
applications requested by multinational
companies.129
It must be stressed that DAO 08-2002 and related
DA orders are not the only legal bases for
regulating field trials of GM plants and plant
products. EO 514130 establishing the National
Biosafety Framework (NBF) clearly provides that
the NBF shall apply to the development, adoption
and implementation of all biosafety policies,
measures and guidelines and in making biosafety
decisions concerning the research, development,
handling and use, transboundary
movement, release into the environment and
management of regulated articles.131 The
objective of the NBF is to "[e]nhance the decisionmaking system on the application of products of
modern biotechnology to make it more efficient,
predictable, effective, balanced, culturally
appropriate, ethical, transparent and
participatory".132 Thus, "the socio-economic,
ethical, and cultural benefit and risks of modern
biotechnology to the Philippines and its citizens,
and in particular on small farmers, indigenous
peoples, women, small and medium enterprises
and the domestic scientific community, shall be
taken into account in implementing the
NBF."133 The NBF also mandates that decisions
shall be arrived at in a transparent and
participatory manner, recognizing that biosafety
issues are best handled with the participation of
all relevant stakeholders and organizations who
shall have appropriate access to information and
the opportunity to participate responsibly and in
an accountable manner in biosafety decisionmaking process.134
Most important, the NBF requires the use of
precaution, as provided in Section 2.6 which
reads:
2.6 Using Precaution. -In accordance with
Principle 15 of the Rio Declaration of 1992 and
the relevant provisions of the Cartagena Protocol
on Biosafety, in particular Articles 1, 10 (par. 6)
and 11 (par. 8), the precautionary approach shall
guide biosafety decisions. The principles and
elements of this approach are hereby

As to the conduct of risk assessment to identify


and evaluate the risks to human health and the
environment, these shall be guided by the
following:
5.2.1 Principles of Risk Assessment. - The
following principles shall be followed when
performing a RA to determine whether a
regulated article poses significant risks to human
health and the
environment:chanRoblesvirtualLawlibrary
5.2.1.
1

The RA shall be carried out in a


scientifically sound and transparent
manner based on available scientific and
technical information. The expert
advice of and guidelines developed
by, relevant international
organizations, including
intergovernmental bodies, and
regulatory authorities of countries
with significant experience in the
regulatory supervision of the
regulated article shall be taken into
account in the conduct of risk
assessment;

5.2.1.
2

Lack of scientific knowledge or


scientific consensus shall not be
interpreted as indicating a particular
level of risk, an absence of risk, or an
acceptable risk;

5.2.1.
3

The identified characteristics of a


regulated article and its use which have
the potential to pose significant risks to
human health and the environment shall
be compared to those presented by the
non-modified organism from which it is
derived and its use under the same
conditions;

5.2.1.
4

The RA shall be carried out case-by-case


and on the basis of transformation
event. The required information may
vary in nature and level of detail from
case to case depending on the regulated
article concerned, its intended use and

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implemented through the decision-making


system in the NBF;
The NBF contains general principles and
minimum guidelines that the concerned agencies
are expected to follow and which their respective
rules and regulations must conform with. In cases
of conflict in applying the principles, the principle
of protecting public interest and welfare shall
always prevail, and no provision of the NBF shall
be construed as to limit the legal authority and
mandate of heads of departments and agencies
to consider the national interest and public
welfare in making biosafety decisions.135

the receiving environment; and,


5.2.1.
5

If new information on the regulated


article and its effects on human health
and the environment becomes available,
and such information is relevant and
significant, the RA shall be readdressed
to determine whether the risk has
changed or whether there is a need to
amend the risk management strategies
accordingly.

5.2.2 Risk Assessment Guidelines. - The


conduct of RA by concerned departments and
agencies shall be in accordance with the policies
and standards on RA issued by the NCBP. Annex
III of the Cartagena Protocol shall also guide RA.
As appropriate, such department and agencies
may issue their own respective administrative
issuances establishing the appropriate RA under
their particular jurisdictions.
5.3 Role of Environmental Impact
Assessment. - The application of the EIA System
to biosafety decisions shall be determined by
concerned departments and agencies
subject to the requirements of law and the
standards set by the NCBP. Where applicable
and under the coordination of the NCBP,
concerned departments and agencies shall issue
joint guidelines on the matter. (Emphasis
supplied)
Considering the above minimum requirements
under the most comprehensive national biosafety
regulation to date, compliance by the petitioners
with DAO 08-2002 is not sufficient. Notably,
Section 7 of the NBF mandates a more
transparent, meaningful and participatory public
consultation on the conduct of field trials beyond
the posting and publication of notices and
information sheets, consultations with some
residents and government officials, and
submission of written comments, provided in DAO
08-2002.
SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and
agencies, in developing and adopting biosafety
policies, guidelines and measures and in making
biosafety decisions, shall promote, facilitate, and
conduct public awareness, education, meaningful,
responsible and accountable participation. They
shall incorporate into their respective
administrative issuances and processes best
practices and mechanisms on public participation
in accordance with the following
guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public

7.2 Minimum Requirements of Public


Participation. - In conducting public
participation processes, the following minimum
requirements shall be
followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a
language understood by them and through media
to which they have access. Such notice must be
adequate, timely, and effective and posted
prominently in public places in the areas affected,
and in the case of commercial releases, in the
national print media; in all cases, such notices
must be posted electronically in the internet;
7.2.2 Adequate and reasonable time frames for
public participation procedures. Such procedures
should allow relevant stakeholders to understand
and analyze the benefits and risks, consult with
independent experts, and make timely
interventions. Concerned departments and
agencies shall include in their appropriate rules
and regulations specific time frames for their
respective public participation processes,
including setting a minimum time frame as may
be appropriate;
7.2.3 Public consultations, as a way to secure
wide input into the decisions that are to be made.
These could include formal hearings in certain
cases, or solicitation of public comments,
particularly where there is public controversy
about the proposed activities. Public
consultations shall encourage exchanges of
information between applicants and the public
before the application is acted upon. Dialogue
and consensus-building among all stakeholders
shall be encouraged. Concerned departments and
agencies shall specify in their appropriate rules
and regulations the stages when public
consultations are appropriate, the specific time
frames for such consultations, and the
circumstances when formal hearings will be
required, including guidelines to ensure orderly
proceedings. The networks of agricultural
and fisheries councils, indigenous peoples
and community-based organizations in
affected areas shall be utilized;
7.2.4 Written submissions. Procedures for public

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participation shall apply to all stages of the


biosafety decision-making process from the
time the application is received. For
applications on biotechnology activities related to
research and development, limited primarily for
contained use, notice of the filing of such
application with the NCBP shall be sufficient,
unless the NCBP deems that public interest and
welfare requires otherwise.

participation shall include mechanisms that allow


public participation in writing or through
public hearings, as appropriate, and which
allow the submission of any positions,
comments, information, analyses or
opinions. Concerned departments and agencies
shall include in their appropriate rules and
regulations the stages when and the process to
be followed for submitting written comments;
and,
7.2.5 Consideration of public concerns in the
decision-making phase following consultation and
submission of written comments. Public concerns
as reflected through the procedures for public
participation shall be considered in making the
decision. The public shall be informed of the final
decision promptly, have access to the decision,
and shall be provided with the reasons and
considerations resulting in the decision, upon
request.
We find that petitioners simply adhered to the
procedures laid down by DAO 08-2002 and no
real effort was made to operationalize the
principles of the NBF in the conduct of field
testing of Bt talong. The failure of DAO 08-2002
to accommodate the NBF means that the
Department of Agriculture lacks mechanisms to
mandate applicants to comply with international
biosafety protocols. Greenpeace's claim that BPI
had approved nearly all of the applications for
GMO field trials is confirmed by the data posted
on their website. For these reasons, the DAO 082002 should be declared invalid.
Significantly, while petitioners repeatedly argued
that the subject field trials are not covered by the
EIS law, EO 514 clearly mandates that concerned
departments and agencies, most particularly
petitioners DENR-EMB, BPI and FPA, make a
determination whether the EIS system should
apply to the release of GMOs into the
environment and issue joint guidelines on the
matter.
The Philippine EIS System (PEISS) is concerned
primarily with assessing the direct and indirect
impacts of a project on the biophysical and
human environment and ensuring that these
impacts are addressed by appropriate
environmental protection and enhancement
measures. It "aids proponents in incorporating
environmental considerations in planning their
projects as well as in determining the
environment's impact on their project." There are
six stages in the regular EIA process. The
proponent initiates the first three stages while the
EMB takes the lead in the last three stages. Public
participation is enlisted in most stages.136

During the hearing at the CA, Arty. Segui of the


EMB was evasive in answering questions on
whether his office undertook the necessary
evaluation on the possible environmental impact
of Bt talong field trials subject of this case and
the release of GMOs into the environment in
general. While he initially cited lack of budget and
competence as reasons for their inaction, he later
said that an amendment of the law should be
made since projects involving GMOs are not
covered by Proclamation No. 2146140. Pertinent
portions of his testimony before the CA are herein
quoted:
xxxx
ATTY. SORIANO: Let us go back Mr. Witness to
your answer in Question No. 5 regarding the list
under the PEISS law. Granting Mr. Witness that a
certain project or undertaking is not classified as
environmentally critical project, how would you
know that the BT talong field testing is not
located in an environmentally critical area this
time?
ATTY. ACANTILADO: Objection Your Honor,
argumentative.
HON. J. DICDICAN: Witness may answer.
ATTY. SEGUI: As far as my recollection can serve

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Even without the issuance of EO 514, GMO field


testing should have at least been considered for
EIA under existing regulations of petitioner EMB
on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the
projects not listed in any of the groups,
e.g. projects using new
processes/technologies with uncertain
impacts. This is an interim category unclassified projects will eventually be classified
into their appropriate groups after EMB
evaluation.137 (Emphasis supplied)
All government agencies as well as private
corporations, firms and entities who intend to
undertake activities or projects which will affect
the quality of the environment are required to
prepare a detailed Environmental Impact
Statement (EIS) prior to undertaking such
development activity.138 An environmentally
critical project (ECP) is considered by the EMB as
"likely to have significant adverse impact that
may be sensitive, irreversible and diverse" and
which "include activities that have significant
environmental consequences."139 In this context,
and given the overwhelming scientific attention
worldwide on the potential hazards of GMOs to
human health and the environment, their release
into the environment through field testing would
definitely fall under the category of ECP.

me, in a reading of the Petition itself, somewhere


along the Petition, petitioners never alleged that
the project, the subject matter rather of this
instant petition, is within an environmentally
critical project.
ATTY. SORIANO: Your Honor the Witness did not
answer the question.
HON. J. DICDICAN: Please answer the question.
ATTY. SEGUI: Personally I have conferred with our
personnel from the Environmental Impact
Assessment Division and they intimated to me
that the locations of the project, rather of this
subject matter of the instant petition, not within
any declared environmentally critical area.
HON. J. BARRIOS: In other words, you are aware
of the area where the BT Talong experiments are
being conducted. Is that the premise?
ATTY. SEGUI: Judging from previous discussions
we had . . . judging from the Petition, and
showing it to the as I said personnel from
Environmental Impact Division at our office, as I
said they intimated to me that it's not within
declared environmentally critical area.
HON. J. BARRIOS: That being the case, you did
not act further? [You] did not make any
further evaluation, on whether the activity
has an environmental impact? Is that the
correct premise?
ATTY. SEGUI: Well Your Honors I may be the Chief
of the Legal Division of the EMB, I handle more of
the legal aspects of the Bureau's affairs. But
when it comes to highly technical matters, I have
to rely on our technical people especially on
environmentally impact assessment matters.
ATTY. SORIANO: I will just ask him another
question Your Honors. So did the Department of
Agriculture Mr. Witness coordinate with your
Office with regard the field testing of BT Talong?
ATTY. SEGUI: I'm sorry Your Honors I am not privy
to that personally.
ATTY. SORIANO: Mr. Witness, the question is did
the Department of Agriculture coordinate with
your Office with regard the field testing
of BT Talong as required under the law?
ATTY. SORIANO: Already answered your Honor,
objection.
HON. J. DICDICAN: The witness in effect said he
does not know, he's not in a position to answer.

ATTY. ACANTILADO: Your Honor that is


speculative, the witness has just answered a
while ago that the EMB has not yet received any
project with respect to that Your Honor. So the
witness would not be in a position to answer that
Your Honors.
HON. J. DICDICAN: Lay the basis first.
ATTY. SORIANO: The earlier answer Your Honor of
the witness is in general terms. My second
question, my follow-up question is specifically
Your Honor theBT talong field testing.
ATTY. SEGUI: Well from where I sit Your Honors, it
would appear that it could be categorized as
unclassified...
HON. J. VALENZUELA: Unclassified?
ATTY. SEGUI: As the section will initially provide.
But there must be prior ... may I continue to harp
on that Your Honors. There must be prior ... let's
say conditions ... there must be prior evaluation
and assessment just the same by the EMB.
HON. J. VALENZUELA: Prior to what Mr. Witness?
ATTY. SEGUI: We will categorize it as unclassified
but there must be ... (interrupted)
HON. J. VALENZUELA: So initially you call it
unclassified and then you say prior to...
ATTY. SEGUI: I'm sorry Your Honors, may I reform.
HON. J. VALENZUELA: Yes please.
ATTY. SEGUI: Initially they will be
considered/categorized as unclassified but there
will be hopefully a subsequent evaluation or
assessment of the matter to see if we also have
the resources and expertise if it can be finally
unclassified. I should say should fall within the
fairview of the system, the EIA system. In other
words, it's in a sort of how do you say that it's in
a state of limbo. So it's unclassified, that's the
most we can do in the meantime.
HON. J. VALENZUELA: And Mr. Witness you also
said that the agency the EMB is without the
capability to evaluate the projects such as this
one in particular?

183

ATTY. SORIANO: Did the EMB Mr. Witness perform


such evaluation in the case of BT Talong field
testing?

xxxx

ATTY. SEGUI: Yes, Your Honors as of now.


HON. J. VALENZUELA: So therefore, when you
say initially it's unclassified and then you're
saying afterwards the EMB needs
evaluation but then you're saying the EMB
is without any capability to evaluate then
what happens?
ATTY. SEGUI: Well Your Honors, I did not draft the
regulation myself. As the Chief of the Legal of the
EMB that's how we interpret it. But the truth
of the matter is with all pragmatism we
don't have the resources as of now and
expertise to do just that.
HON. J. BARRIOS: So in other words you admit
that the EMB is without any competence to
make a categorical or initial examination of
this uncategorized activity, is that what you
mean?
ATTY. SEGUI: It would appear, yes.
HON. J. BARRIOS: What do you think would
prompt your office to make such initial
examination?
ATTY. SEGUI: Well executive fee at the usual
dictates ... the Secretary of the DENR probably
even by request of the parties concerned.
HON. J. BARRIOS: So that means you are waiting
for a request? Are you not? Proactive in this
activity in performing your obligations and
duties?
ATTY. SEGUI: Well Your Honors, the national
budget if I may ... I attend budget hearings
myself. The budget for the environment is
hardly ... the ratio is ... if we want to
protect indeed the environment as we
profess, with all due respect if Congress
speaks otherwise.
HON. J. BARRIOS: May I interrupt, can we go into
specifics. From what I have read so far, under No.
2 of your Judicial Affidavit, [you] are saying that
the EMB is tasked in advising the DENR on
matters related to environmental management,
conservation and pollution control, right?
ATTY. SEGUI: Yes.
HON. J. BARRIOS: Thereafter you stated that you
are tasked mainly with PD 1586 which refers to
Environmental Critical Areas of Projects and more
specifically focused on Proclamation No. 2146.
With respect to this BT Talong, you mentioned

HON. J. BARRIOS: But you did mention that under


the rules and regulations, even in an
uncategorized activity, pertaining to the
environment, your Office has the mandate and
then you later say that your Office is without
competence, do I follow your line of standing?
ATTY. SEGUI: Yes, precisely it will be categorized
as per section 7 as unclassified because it doesn't
fall as of now within Proclamation 2146.
HON. J. BARRIOS: Yes, but under the
implementing rules your Office has the mandate
to act on other unclassified activities and you
answered that your Office has no competence.
ATTY. SEGUI: Proclamation 2146 executed by then
Pres. Marcos, the IRR pointed to was executed by
I believe the Secretary of DENR. We need an
amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the
Legal Division is an indication of the DENR-EMB's
lack of serious attention to their mandate under
the law in the implementation of the NBF, as
provided in the following sections of EO 514:
4.9 Mandate of the Department of
Environment and Natural Resources. - As the
primary government agency responsible for the
conservation, management, development and
proper use of the country's environment and
natural resources, the Department of
Environment and Natural Resources (DENR) shall
ensure that environmental assessments are
done and impacts identified in biosafety
decisions. It shall also take the lead in
evaluating and monitoring regulated articles
intended for bioremediation, the improvement of
forest genetic resources, and wildlife genetic
resources.
xxxx
4.12 Focal Point and Competent National
Authorities.
4.12.1 For purposes of Article 19 of the Cartagena
Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall
be the Department of Foreign Affairs. The
competent national authorities, responsible for
performing the administrative functions required
by the Protocol, shall be, depending on the
particular genetically modified organisms in

184

ATTY. SEGUI: It's not within Proclamation 2146


Your Honor.

that this is at first is uncategorized, it's not


within?

question, the
following:chanRoblesvirtualLawlibrary
xxxx
4.12.1.4 The Department of Environment and
Natural Resources, for biosafety decisions
covered by the Protocol that
concernregulated organisms intended for
bioremediation, the improvement of forest
genetic resources, and wildlife genetic resources,
andapplications of modern biotechnology
with potential impact on the conservation
and sustainable use of biodiversity.
(Emphasis supplied)
On the supposed absence of budget mentioned
by Atty. Segui, EO 514 itself directed the
concerned agencies to ensure that there will be
funding for the implementation of the NBF as it
was intended to be a multi-disciplinary effort
involving the different government departments
and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH
shall allocate funds from their present budgets to
implement the NBF, including support to the
operations of the NCBP and its Secretariat.
Starting 2006 and thereafter, the funding
requirements shall be included in the General
Appropriations Bill submitted by each of said
departments to Congress.
These concerned departments shall enter into
agreement on the sharing of financial and
technical resources to support the NCBP and its
Secretariat.
All told, petitioners government agencies clearly
failed to fulfil their mandates in the
implementation of the NBF.
Application of the Precautionary Principle
The precautionary principle originated in
Germany in the 1960s, expressing the normative
idea that governments are obligated to "foresee
and forestall" harm to the environment. In the
following decades, the precautionary principle
has served as the normative guideline for
policymaking by many national
governments.142 The Rio Declaration on
Environment and Development, the outcome of
the 1992 United Nations Conference on
Environment and Development held in Rio de
Janeiro, defines the rights of the people to be
involved in the development of their economies,
and the responsibilities of human beings to
safeguard the common environment. It states
that the long term economic progress is only
ensured if it is linked with the protection of the
environment.143 For the first time, the

6. Lack of scientific certainty due to insufficient


relevant scientific information and knowledge
regarding the extent of the potential adverse
effects of a living modified organism on the
conservation and sustainable use of biological
diversity in the Party of import, taking also into
account risks to human health, shall not prevent
that Party from taking a decision, as appropriate,
with regard to the import of the living modified
organism in question as referred to in paragraph
3 above, in order to avoid or minimize such
potential adverse effects.
Article 11
PROCEDURE FOR LIVING MODIFIED
ORGANISMS
INTENDED FOR DIRECT USE AS FOOD OR
FEED,
OR FOR PROCESSING
8. Lack of scientific certainty due to insufficient
relevant scientific information and knowledge
regarding the extent of the potential adverse
effects of a living modified organism on the
conservation and sustainable use of biological
diversity in the Party of import, taking also into
account risks to human health, shall not prevent
that Party from taking a decision, as appropriate,
with regard to the import of that living modified
organism intended for direct use as food or feed,
or for processing, in order to avoid or minimize
such potential adverse effects.

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precautionary approach was codified under


Principle 15, which reads:
In order to protect the environment, the
precautionary approach shall be widely applied
by States according to their capabilities. Where
there are threats of serious or irreversible
damage, lack of full scientific certainty shall not
be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
Principle 15 codified for the first time at the
global level the precautionary approach, which
indicates that lack of scientific certainty is no
reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It
has been incorporated in various international
legal instruments.144 The Cartagena Protocol on
Biosafety to the Convention on Biological
Diversity, finalized and adopted in Montreal on
January 29, 2000, establishes an international
regime primarily aimed at regulating trade in
GMOs intended for release into the environment,
in accordance with Principle 15 of the Rio
Declaration on Environment and Development.
The Protocol thus provides:
Article 10
DECISION PROCEDURE
xxxx

Annex III
RISK ASSESSMENT
General principles
xxxx
4. Lack of scientific knowledge or scientific
consensus should not necessarily be interpreted
as indicating a particular level of risk, an absence
of risk, or an acceptable risk.
The precautionary principle applies when the
following conditions are met145:

there exist considerable scientific


uncertainties;

there exist scenarios (or models) of


possible harm that are scientifically reasonable
(that is based on some scientifically plausible
reasoning);

uncertainties cannot be reduced in the


short term without at the same time increasing
ignorance of other relevant factors by higher
levels of abstraction and idealization;

the potential harm is sufficiently serious or


even irreversible for present or future generations
or otherwise morally unacceptable;

there is a need to act now, since effective


counteraction later will be made significantly
more difficult or costly at any later time.
The Rules likewise incorporated the principle in
Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - When there is a lack of full
scientific certainty in establishing a causal link
between human activity and environmental
effect, the court shall apply the precautionary
principle in resolving the case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given the
benefit of the doubt.
SEC. 2. Standards for application. - In applying
the precautionary principle, the following factors,
among others, may be considered: (1) threats to
human life or health;