G.R. No.
132601 January 19, 1999
LEO ECHEGARAY, petitioner,
vs.
SECRETARY OF JUSTICE, ET AL., respondents.
RESOLUTION
PUNO, J.:
For resolution are public respondents' Urgent Motion for
Reconsideration of the Resolution of this Court dated January 4, 1990
temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of
public respondents that:
1. The Decision in this case having become final and
executory, its execution enters the exclusive ambit of
authority of the executive authority. The issuance of the
TRO may be construed as trenching on that sphere of
executive authority;
2. The issuance of the temporary restraining order . . .
creates dangerous precedent as there will never be an
end to litigation because there is always a possibility
that Congress may repeal a law.
3. Congress had earlier deliberated extensively on the
death penalty bill. To be certain, whatever question
may now be raised on the Death Penalty Law before
the present Congress within the 6-month period given
by this Honorable Court had in all probability been fully
debated upon . . .
4. Under the time honored maxim lex futuro, judex
praeterito, the law looks forward while the judge looks
at the past, . . . the Honorable Court in issuing the TRO
has transcended its power of judicial review.
5. At this moment, certain circumstances/supervening
events transpired to the effect that the repeal or
modification of the law imposing death penalty has
become nil, to wit:
a. The public pronouncement of President Estrada
that he will veto any law imposing the death
penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al.,
that they are against the repeal of the law;
c. The fact that Senator Roco's resolution to
repeal the law only bears his signature and that
of Senator Pimentel.
In their Supplemental Motion to Urgent Motion for Reconsideration,
public respondents attached a copy of House Resolution No. 629
introduced by Congressman Golez entitled "Resolution expressing the
sense of the House of Representative to reject any move to review
Republic Act No. 7659 which provided for the re-imposition of death
penalty, notifying the Senate, the Judiciary and the Executive
Department of the position of the House of Representative on this
matter, and urging the President to exhaust all means under the law to
immediately implement the death penalty law." The Resolution was
concurred in by one hundred thirteen (113) congressman.
In their Consolidated Comment, petitioner contends: (1) the stay order.
. . is within the scope of judicial power and duty and does not trench on
executive powers nor on congressional prerogatives; (2) the exercise
by this Court of its power to stay execution was reasonable; (3) the
Court did not lose jurisdiction to address incidental matters involved or
arising from the petition; (4) public respondents are estopped from
challenging the Court's jurisdiction; and (5) there is no certainty that the
law on capital punishment will not be repealed or modified until
Congress convenes and considers all the various resolutions and bills
filed before it.
Prefatorily, the Court likes to emphasize that the instant motions
concern matters that are not incidents in G.R. No. 117472, where the
death penalty was imposed on petitioner on automatic review of his
conviction by this Court. The instant motions were filed in this case,
G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal
Injection Law) and its implementing rules and regulations was assailed
by petitioner. For this reason, the Court in its Resolution of January 4,
1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. of Republic Act No. 7659; and (b)
Echegaray dated January 7, 1999 and Entry of Appearance of her Section 19 fails to provide for review
counsel dated January 5, 1999. Clearly, she has no legal standing to and approval of the Lethal Injection
intervene in the case at bar, let alone the fact that the interest of the Manual by the Secretary of Justice, and
State is properly represented by the Solicitor General. unjustifiably makes the manual
confidential, hence unavailable to
We shall now resolve the basic issues raised by the public interested parties including the
respondents. accused/convict and counsel.
Respondents are hereby enjoined from
I enforcing and implementing Republic
Act No. 8177 until the aforesaid
Sections 17 and 19 of the Rules and
First. We do not agree with the sweeping submission of the public
Regulations to Implement Republic Act
respondents that this Court lost its jurisdiction over the case at bar and
No. 8177 are appropriately amended,
hence can no longer restrain the execution of the petitioner. Obviously,
revised and/or corrected in accordance
public respondents are invoking the rule that final judgments can no
with this Decision.
longer be altered in accord with the principle that "it is just as important
that there should be a place to end as there should be a place to begin
litigation." 1 To start with, the Court is not changing even a comma of its SO ORDERED.
final Decision. It is appropriate to examine with precision the metes and
bounds of the Decision of this Court that became final. These metes and that the same has, on November 6, 1988 become
and bounds are clearly spelled out in the Entry of Judgment in this final and executory and is hereby recorded in the Book
case, viz: of Entries of Judgment.

ENTRY OF JUDGMENT Manila, Philippine.

This is to certify that on October 12, 1998 a decision

rendered in the above-entitled case was filed in this
Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED

insofar as petitioner seeks to declare
the assailed statute (Republic Act No.
8177) as unconstitutional; but
GRANTED insofar as Sections 17 and
19 of the Rules and Regulations to
Implement Republic Act No. 8177 are
concerned, which are hereby declared
INVALID because (a) Section 17
contravenes Article 83 of the Revised
Penal Code, as amended by Section 25
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The records willS show that before the Entry of Judgment, the Secretary
of Justice, the IHonorable Serafin Cuevas, filed with this Court on
October 21, 1998P a Compliance where he submitted the Amended
Rules and Regulations implementing R.A. No. 8177 in compliance with
our Decision. OnA October 28, 1998, Secretary Cuevas submitted a
c
Manifestation informing the Court that he has caused the publication of
the said Amendedt Rules and Regulations as required by the
Administrativei Code. It is crystalline that the Decision of this Court that
became final andn unalterable mandated: (1) that R.A. No. 8177 is not
g (2) that sections 17 and 19 of the Rules and
unconstitutional;
Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No.
8177 cannot be C enforced and implemented until sections 17 and 19 of
the Rules and hRegulations to Implement R.A. No. 8177 are amended.
i clear that this Decision was not altered a whit by this
It is also daylight
Court. Contrary to the submission of the Solicitor General, the rule on
finality of judgment cannot divest this Court of its jurisdiction to execute
and enforce the same judgment. Retired Justice Camilo Quiason
synthesized the well established jurisprudence on this issue as
follows: 2
xxx xxx xxx
the finality of a judgment does not mean that the Court
has lost all its powers nor the case. By the finality of the
judgment, what the court loses is its jurisdiction to
amend, modify or alter the same. Even after the
judgment has become final the court retains its
jurisdiction to execute and enforce it. 3 There is a
difference between the jurisdiction of the court to
execute its judgment and its jurisdiction to amend,
modify or alter the same. The former continues even
after the judgment has become final for the purpose of
enforcement of judgment; the latter terminates when
the judgment becomes final. 4 . . . For after the
judgment has become final facts and circumstances
may transpire which can render the execution unjust or
impossible.5
In truth, the arguments of the Solicitor General has long been rejected
by this Court. As aptly pointed out by the petitioner, as early as 1915,
this Court has unequivocably ruled in the case of Director of Prisons v.
Judge of First Instance, 6 viz:
This Supreme Court has repeatedly declared in various
decisions, which constitute jurisprudence on the
subject, that in criminal cases, after the sentence has
been pronounced and the period for reopening the
same cannot change or alter its judgment, as its
jurisdiction has terminated . . . When in cases of appeal
or review the cause has been returned thereto for
execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the
proper order. But it does not follow from this cessation
of functions on the part of the court with reference to
the ending of the cause that the judicial authority
terminates by having then passed completely to the
Executive. The particulars of the execution itself, which
are certainly not always included in the judgment and
writ of execution, in any event are absolutely under the
control of the judicial authority, while the executive has
no power over the person of the convict except to
provide for carrying out of the penalty and to pardon.
Getting down to the solution of the question in the case
at bar, which is that of execution of a capital sentence,
it must be accepted as a hypothesis that postponement
of the date can be requested. There can be no dispute
on this point. It is a well-known principle that
notwithstanding the order of execution and the
executory nature thereof on the date set or at the
proper time, the date therefor can be postponed, even
in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By
command of the King; (2) by discretion (arbitrio) of the
court; and (3) by mandate of the law. It is sufficient to
state this principle of the common law to render
impossible that assertion in absolute terms that after
the convict has once been placed in jail the trial court
can not reopen the case to investigate the facts that
show the need for postponement. If one of the ways is
by direction of the court, it is acknowledged that even
after the date of the execution has been fixed, and
notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the
execution . . . and its part is ended, if however a
circumstance arises that ought to delay the execution,
and there is an imperative duty to investigate the
emergency and to order a postponement. Then the
question arises as to whom the application for
postponing the execution ought to be addressed while
the circumstances is under investigation and so to who
has jurisdiction to make the investigation.
The power to control the execution of its decision is an essential aspect
of jurisdiction. It cannot be the subject of substantial subtraction for our
Constitution 7 vests the entirety of judicial power in one Supreme Court
and in such lower courts as may be established by law. To be sure, the
important part of a litigation, whether civil or criminal, is the process of
execution of decisions where supervening events may change the
circumstance of the parties and compel courts to intervene and adjust
the rights of the litigants to prevent unfairness. It is because of these
unforseen, supervening contingencies that courts have been conceded
the inherent and necessary power of control of its processes and
orders to make them conformable to law and justice. 8 For this purpose,
Section 6 of Rule 135 provides that "when by law jurisdiction is
conferred on a court or judicial officer, all auxiliary writs, processes and
other means necessary to carry it into effect may be employed by such
court or officer and if the procedure to be followed in the exercise of
such jurisdiction is not specifically pointed out by law or by these rules,
any suitable process or mode of proceeding may be adopted which
appears conformable to the spirit of said law or rules." It bears
repeating that what the Court restrained temporarily is the execution of
its own Decision to give it reasonable time to check its fairness in light
of supervening events in Congress as alleged by petitioner. The Court,
contrary to popular misimpression, did not restrain the effectivity of a
law enacted by Congress. 1âwphi 1.nêt
The more disquieting dimension of the submission of the public
respondents that this Court has no jurisdiction to restrain the execution
of petitioner is that it can diminish the independence of the judiciary.
Since the implant of republicanism in our soil, our courts have been
conceded the jurisdiction to enforce their final decisions. In accord with
this unquestioned jurisdiction, this Court promulgated rules concerning
pleading, practice and procedure which, among others, spelled out the
rules on execution of judgments. These rules are all predicated on the
assumption that courts have the inherent, necessary and incidental
power to control and supervise the process of execution of their
decisions. Rule 39 governs execution, satisfaction and effects of
judgments in civil cases. Rule 120 governs judgments in criminal
cases. It should be stressed that the power to promulgate rules of
pleading, practice and procedure was granted by our Constitutions to
this Court to enhance its independence, for in the words of Justice
Isagani Cruz "without independence and integrity, courts will lose that
popular trust so essential to the maintenance of their vigor as
champions of justice." 9 Hence, our Constitutions continuously vested
this power to this Court for it enhances its independence. Under the
1935 Constitution, the power of this Court to promulgate rules
concerning pleading, practice and procedure was granted but it
appeared to be co-existent with legislative power for it was subject to
the power of Congress to repeal, alter or supplement. Thus, its Section
13, Article VIII provides:
Sec.13. The Supreme Court shall have the power to
promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the
practice of law. Said rules shall be uniform for all courts
of the same grade and shall not diminish, increase, or
modify substantive rights. The existing laws on
pleading, practice and procedure are hereby repealed
as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the
same. The Congress have the power to repeal, alter or
supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in
the Philippines.
The said power of Congress, however, is not as absolute as it may
appear on its surface. In In re Cunanan 10Congress in the exercise of its
power to amend rules of the Supreme Court regarding admission to the
practice of law, enacted the Bar Flunkers Act of 1953 11 which
considered as a passing grade, the average of 70% in the bar
examinations after July 4, 1946 up to August 1951 and 71% in the
1952 bar examinations. This Court struck down the law as
unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the
disputed law is not a legislation; it is a judgment — a judgment
promulgated by this Court during the aforecited years affecting the bar
candidates concerned; and although this Court certainly can revoke
these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these department would be
a clear usurpation of its function, as is the case with the law in
question." 12The venerable jurist further ruled: "It is obvious, therefore,
that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the
matter is of permissive character, or as other authorities say, merely to
fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter
or supplement the rules concerning pleading, practice and procedure,
and the admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973
Constitution. For the 1973 Constitution reiterated the power of this
Court "to promulgate rules concerning pleading, practice and
procedure in all courts, . . . which, however, may be repealed, altered
or supplemented by the Batasang Pambansa . . . ." More completely,
Section 5(2)5 of its Article X provided:
Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to
promulgate rules governing the integration of the Bar. 13
The 1987 Constitution molded an even stronger and more independent
judiciary. Among others, it enhanced the rule making power of this
Court. Its Section 5(5), Article VIII provides:
xxx xxx xxx

xxx xxx xxx Sec. 5. The Supreme Court shall have

the following powers:
Sec.5. The Supreme Court shall have
the following powers. xxx xxx xxx

xxx xxx xxx (5) Promulgate rules

concerning the
(5) Promulgate rules protection and
concerning pleading, enforcement of
practice, and procedure constitutional rights,
in all courts, the pleading, practice and
admission to the procedure in all courts,
practice of law, and the the admission to the
integration of the Bar, practice of law, the
which, however, may be Integrated Bar, and legal
repealed, altered, or assistance to the
supplemented by the underprivileged. Such
Batasang Pambansa. rules shall provide a
Such rules shall provide simplified and
a simplified and inexpensive procedure
inexpensive procedure for the speedy
for the speedy disposition of cases,
disposition of cases, shall be uniform for all
shall be uniform for all courts of the same
courts of the same grade, and shall not
grade, and shall not diminish, increase, or
diminish, increase, or modify substantive
modify substantive rights. Rules of
rights. procedure of special
courts and quasi-judicial
 bodies shall remain instant Manifestation and Motion (a) to
effective unless stress, inter alia, that the non-disclosure
disapproved by the of the date of execution deprives herein
Supreme Court. respondent of vital information
necessary for the exercise of his
The rule making power of this Court was expanded. This Court for the statutory powers, as well as renders
first time was given the power to promulgate rules concerning the nugatory the constitutional guarantee
protection and enforcement of constitutional rights. The Court was also that recognizes the people's right to
granted for the first time the power to disapprove rules of procedure of information of public concern, and (b) to
special courts and quasi-judicial bodies. But most importantly, the 1987 ask this Honorable Court to provide the
Constitution took away the power of Congress to repeal, alter, or appropriate relief.
supplement rules concerning pleading, practice and procedure. In fine,
the power to promulgate rules of pleading, practice and procedure is 6. The non-disclosure of the date of
no longer shared by this Court with Congress, more so with the execution deprives herein respondent of
Executive. If the manifest intent of the 1987 Constitution is to vital information necessary for the
strengthen the independence of the judiciary, it is inutile to urge, as exercise of his power of supervision and
public respondents do, that this Court has no jurisdiction to control the control over the Bureau of Corrections
process of execution of its decisions, a power conceded to it and which pursuant to Section 39, Chapter 8, Book
it has exercised since time immemorial. IV of the Administrative Code of 1987,
in relation to Title III, Book IV of such
To be sure, it is too late in the day for public respondents to assail the Administrative Code, insofar as the
jurisdiction of this Court to control and supervise the implementation of enforcement of Republic Act No. 8177
its decision in the case at bar. As aforestated, our Decision became and the Amended Rules and
final and executory on November 6, 1998. The records reveal that after Regulations to Implement Republic Act
November 6, 1998, or on December 8, 1998, no less than the No. 8177 is concerned and for the
Secretary of Justice recognized the jurisdiction of this Court by filing a discharge of the mandate of seeing to it
Manifestation and Urgent Motion to compel the trial judge, the that laws and rules relative to the
Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to execution of sentence are faithfully
provide him ". . . a certified true copy of the Warrant of Execution dated observed.
November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the 7. On the other hand, the willful
contents thereof, particularly the execution date fixed by such trial court omission to reveal the information about
to the public when requested." The relevant portions of the the precise day of execution limits the
Manifestation and Urgent Motion filed by the Secretary of Justice exercise by the President of executive
beseeching this Court "to provide the appropriate relief" state: clemency powers pursuant to Section
19, Article VII (Executive Department)
xxx xxx xxx of the 1987 Philippine Constitution and
Article 81 of the Revised Penal Code,
5. Instead of filing a comment on Judge as amended, which provides that the
Ponferrada's Manifestation however, death sentence shall be carried out
herein respondent is submitting the "without prejudice to the exercise by the
President of his executive powers at all
times." (Emphasis supplied) For
instance, the President cannot grant
reprieve, i.e., postpone the execution of
a sentence to a day certain (People v.
Vera, 65 Phil. 56, 110 [1937]) in the
absence of a precise date to reckon
with. The exercise of such clemency
power, at this time, might even work to
the prejudice of the convict and defeat
the purpose of the Constitution and the
applicable statute as when the date at
execution set by the President would be
earlier than that designated by the
court.
8. Moreover, the deliberate non-
disclosure of information about the date
of execution to herein respondent and
the public violates Section 7, Article III
(Bill of Rights) and Section 28, Article II
(Declaration of Principles and State
Policies) of the 1987 Philippine
Constitution which read:
Sec. 7. The right of the people to
information on matters of public concern
shall be recognized. Access to official
records, and to documents and papers
pertaining to official acts, transactions,
or decisions, as well as to government
research data used as basis for policy
development shall, be afforded the
citizen, subject to such limitations as
may beprovided by law.
Sec. 28. Subject to reasonable
conditions prescribed by law, the State
adopts and implements a policy of full
public disclosure of all transactions
involving public interest.
9. The "right to information" provision is
self-executing. It supplies "the rules by
means of which the right to information
may be enjoyed (Cooley, A Treatise on
the Constitutional Limitations, 167
[1972]) by guaranteeing the right and
mandating the duty to afford access to
sources of information. Hence, the
fundamental right therein recognized
may be asserted by the people upon
the ratification of the Constitution
without need for any ancillary act of the
Legislature (Id., at p. 165) What may be
provided for by the Legislature are
reasonable conditions and limitations
upon the access to be afforded which
must, of necessity, be consistent with
the declared State policy of full public
disclosure of all transactions involving
public interest (Constitution, Art. II, Sec.
28). However, it cannot be
overemphasized that whatever
limitation may be prescribed by the
Legislature, the right and the duty under
Art. III, Sec. 7 have become operative
and enforceable by virtue of the
adoption of the New Charter." (Decision
of the Supreme Court En Banc in
Legaspi v. Civil Service Commission,
150 SCRA 530, 534-535 [1987].
The same motion to compel Judge Ponferrada to reveal the date of
execution of petitioner Echegaray was filed by his counsel, Atty.
Theodore Te, on December 7, 1998. He invoked his client's right to
due process and the public's right to information. The Solicitor General,
as counsel for public respondents, did not oppose petitioner's motion
on the ground that this Court has no more jurisdiction over the process
of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its
Resolution of December 15, 1998. There was not a whimper of protest
from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief.
The jurisdiction of this Court does not depend on the convenience of
litigants.
II
Second. We likewise reject the public respondents' contention that the
"decision in this case having become final and executory, its execution
enters the exclusive ambit of authority of the executive department . . ..
By granting the TRO, the Honorable Court has in effect granted
reprieve which is an executive function." 14 Public respondents cite as
their authority for this proposition, Section 19, Article VII of the
Constitution which reads:
Except in cases of impeachment, or as
otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and
remit fines and forfeitures after conviction by final
judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the
members of the Congress.
The text and tone of this provision will not yield to the interpretation
suggested by the public respondents. The provision is simply the
source of power of the President to grant reprieves, commutations, and
pardons and remit fines and forfeitures after conviction by final
judgment. It also provides the authority for the President to grant
amnesty with the concurrence of a majority of all the members of the
Congress. The provision, however, cannot be interpreted as denying
the power of courts to control the enforcement of their decisions after
their finality. In truth, an accused who has been convicted by final
judgment still possesses collateral rights and these rights can be
claimed in the appropriate courts. For instance, a death convict who
become insane after his final conviction cannot be executed while in a
state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from
executing the death sentence upon a person who is insane at the time
of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the
presidential power of reprieve though its effects is the same — the
temporary suspension of the execution of the death convict. In the
same vein, it cannot be denied that Congress can at any time amend
R.A. No. 7659 by reducing the penalty of death to life imprisonment.
The effect of such an amendment is like that of commutation of
sentence. But by no stretch of the imagination can the exercise by
Congress of its plenary power to amend laws be considered as a
violation of the power of the President to commute final sentences of
conviction. The powers of the Executive, the Legislative and the
Judiciary to save the life of a death convict do not exclude each other
for the simple reason that there is no higher right than the right to life.
Indeed, in various States in the United States, laws have even been
enacted expressly granting courts the power to suspend execution of
convicts and their constitutionality has been upheld over arguments
that they infringe upon the power of the President to grant reprieves.
For the public respondents therefore to contend that only the Executive
can protect the right to life of an accused after his final conviction is to
violate the principle of co-equal and coordinate powers of the three
branches of our government.
III
Third. The Court's resolution temporarily restraining the execution of
petitioner must be put in its proper perspective as it has been
grievously distorted especially by those who make a living by vilifying
courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on
December 28, 1998 at about 11:30 p.m. He invoked several
grounds, viz: (1) that his execution has been set on January 4, the first
working day of 1999; (b) that members of Congress had either sought
for his executive clemency and/or review or repeal of the law
authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's
resolution asking that clemency be granted to the petitioner and that
capital punishment be reviewed has been concurred by thirteen (13)
other senators; (b.2) Senate President Marcelo Fernan and Senator
Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the
repeal of capital punishment, and (b.4) Congressman Salacrib
Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.
When the Very Urgent Motion was filed, the Court was already in its
traditional recess and would only resume session on January 18, 1999.
Even then, Chief Justice Hilario Davide, Jr. called the Court to a
Special Session on January 4, 1991 17 at 10. a.m. to deliberate on
petitioner's Very Urgent Motion. The Court hardly had five (5) hours to
resolve petitioner's motion as he was due to be executed at 3 p.m.
Thus, the Court had the difficult problem of resolving whether
petitioner's allegations about the moves in Congress to repeal or
amend the Death Penalty Law are mere speculations or not. To the
Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and
surmises. They noted that petitioner's allegations were made in a
pleading under oath and were widely publicized in the print and
broadcast media. It was also of judicial notice that the 11th Congress is
a new Congress and has no less than one hundred thirty (130) new
members whose views on capital punishment are still unexpressed.
The present Congress is therefore different from the Congress that
enacted the Death Penalty Law (R.A. No. 7659) and the Lethal
Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that
petitioner's allegations lacked clear factual bases. There was hardly a
time to verify petitioner's allegations as his execution was set at 3 p.m.
And verification from Congress was impossible as Congress was not in
session. Given these constraints, the Court's majority did not rush to
judgment but took an extremely cautious stance by temporarily
restraining the execution of petitioner. The suspension was temporary
— "until June 15, 1999, coeval with the constitutional duration of the
present regular session of Congress, unless it sooner becomes certain
that no repeal or modification of the law is going to be made." The
extreme caution taken by the Court was compelled, among others, by
the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the
graveyard. As life was at, stake, the Court refused to constitutionalize
haste and the hysteria of some partisans. The Court's majority felt it
needed the certainty that the legislature will not petitioner as alleged by
his counsel. It was believed that law and equitable considerations
demand no less before allowing the State to take the life of one its
citizens.
The temporary restraining order of this Court has produced its desired
result, i.e., the crystallization of the issue whether Congress is
disposed to review capital punishment. The public respondents, thru
the Solicitor General, cite posterior events that negate beyond doubt
the possibility that Congress will repeal or amend the death penalty
law. He names these supervening events as follows:
xxx xxx xxx
a. The public pronouncement of President Estrada that he
will veto any law imposing the death penalty involving
heinous crimes.
b. The resolution of Congressman Golez, et al., that they
are against the repeal of the law;
c. The fact that Senator Roco's resolution to repeal the
law only bears his signature and that of Senator
Pimentel. 18
In their Supplemental Motion to Urgent Motion for Reconsideration, the
Solicitor General cited House Resolution No. 629 introduced by
Congressman Golez entitled "Resolution expressing the sense of the
House of Representatives to reject any move to review R.A. No. 7659
which provided for the reimposition of death penalty, notifying the
Senate, the Judiciary and the Executive Department of the position of
the House of Representative on this matter and urging the President to
exhaust all means under the law to immediately implement the death
penalty law." The Golez resolution was signed by 113 congressman as
of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor,
the House of Representative with minor amendments formally adopted
the Golez resolution by an overwhelming vote. House Resolution No.
25 expressed the sentiment that the House ". . . does not desire at this
time to review Republic Act 7659." In addition, the President has stated
that he will not request Congress to ratify the Second Protocol in
review of the prevalence of heinous crimes in the country. In light of
these developments, the Court's TRO should now be lifted as it has
served its legal and humanitarian purpose.
A last note. In 1922, the famous Clarence Darrow predicted that ". . .
the question of capital punishment had been the subject of endless
discussion and will probably never be settled so long as men believe in
punishment." 19 In our clime and time when heinous crimes continue to
be unchecked, the debate on the legal and moral predicates of capital
punishment has been regrettably blurred by emotionalism because of
the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is
no more than an exchange of epithets is healthy in a democracy. But
when the debate deteriorates to discord due to the overuse of words
that wound, when anger threatens to turn the majority rule to tyranny, it
is the especial duty of this Court to assure that the guarantees of the
Bill of Rights to the minority fully hold. As Justice Brennan reminds us
". . . it is the very purpose of the Constitution — and particularly the Bill
of Rights — to declare certain values transcendent, beyond the reach
of temporary political majorities." 20 Man has yet to invent a better
hatchery of justice than the courts. It is a hatchery where justice will
bloom only when we can prevent the roots of reason to be blown away
by the winds of rage. The flame of the rule of law cannot be ignited by
rage, especially the rage of the mob which is the mother of unfairness.
The business of courts in rendering justice is to be fair and they can
pass their litmus test only when they can be fair to him who is
momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent

Motion for Reconsideration and Supplemental Motion to Urgent Motion
for Reconsideration and lifts the Temporary Restraining Order issued
in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A.
Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set
anew the date for execution of the convict/petitioner in accordance with
applicable provisions of law and the Rules of Court, without further
delay.

SO ORDERED.
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not
a public officer, who has been granted an absolute pardon by the Chief
Executive, is entitled to reinstatement to her former position without
need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan
convicted petitioner Salvacion A. Monsanto (then assistant treasurer of
Calbayog City) and three other accused, of the complex crime of estafa
thru falsification of public documents and sentenced them to
imprisonment of four (4) years, two (2) months and one (1) day
of prision correccional as minimum, to ten (10) years and one (1) day
of prision mayor as maximum, and to pay a fine of P3,500. They were
further ordered to jointly and severally indemnify the government in the
sum of P4,892.50 representing the balance of the amount defrauded
and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which
subsequently affirmed the same. She then filed a motion for
reconsideration but while said motion was pending, she was extended
on December 17, 1984 by then President Marcos absolute pardon
which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer
requesting that she be restored to her former post as assistant city
treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for
resolution in view of the provision of the Local Government Code
transferring the power of appointment of treasurers from the city
governments to the said Ministry. In its 4th Indorsement dated March 1,
1985, the Finance Ministry ruled that petitioner may be reinstated to
her position without the necessity of a new appointment not earlier than
the date she was extended the absolute pardon. It also directed the
city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the
Ministry on April 17, 1985 stressing that the full pardon bestowed on
her has wiped out the crime which implies that her service in the
government has never been interrupted and therefore the date of her
reinstatement should correspond to the date of her preventive
suspension which is August 1, 1982; that she is entitled to backpay for
the entire period of her suspension; and that she should not be
required to pay the proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the
Office of the President for further review and action. On April 15, 1986,
said Office, through Deputy Executive Secretary Fulgenio S. Factoran,
Jr. held:
We disagree with both the Ministry of Finance and the
petitioner because, as borne out by the records,
petitioner was convicted of the crime for which she was
accused. In line with the government's crusade to
restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77
Phil. 1966), the Resolution of the Sandiganbayan, 2nd
Division, in People v. Lising, Crim. Case No. 6675,
October 4, 1985, that acquittal, not absolute pardon, of
a former public officer is the only ground for
reinstatement to his former position and entitlement to
payment of his salaries, benefits and emoluments due
to him during the period of his suspension pendente
lite.
In fact, in such a situation, the former public official
must secure a reappointment before he can reassume
his former position. ...
 Anent the civil liability of Monsanto, the Revised Penal
Code expressly provides that "a pardon shall in no case
exempt the culprit from payment of the civil indemnity
imposed upon him by the sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that
Salvacion A. Monsanto is not entitled to an automatic
reinstatement on the basis of the absolute pardon
granted her but must secure an appointment to her
former position and that, notwithstanding said absolute
pardon, she is liable for the civil liability concomitant to
her previous conviction. 3
Her subsequent motion for reconsideration having been denied,
petitioner filed the present petition in her behalf We gave due course
on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot
apply to her case by reason of the fact that she was extended
executive clemency while her conviction was still pending appeal in this
Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to
have been terminated or forfeited. In other words, without that final
judgment of conviction, the accessory penalty of forfeiture of office did
not attach and the status of her employment remained "suspended."
More importantly, when pardon was issued before the final verdict of
guilt, it was an acquittal because there was no offense to speak of. In
effect, the President has declared her not guilty of the crime charged
and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the
complex crime of estafa thru falsification of public documents and
sentenced to imprisonment of four years, two months and one day
of prision correccional as minimum, to ten years and one day of prision
mayor as maximum. The penalty of prision mayor carries the
accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty. 5 Temporary absolute
disqualification bars the convict from public office or employment, such
disqualification to last during the term of the sentence. 6 Even if the
offender be pardoned, as to the principal penalty, the accessory
penalties remain unless the same have been expressly remitted by the
pardon. 7 The penalty of prision correccional carries, as one of its
accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate
understanding of the nature of pardon and its legal consequences. This
is not totally unexpected considering that the authorities on the subject
have not been wholly consistent particularly in describing the effects of
pardon.
The benign mercy of pardon is of British origin, conceived to temper
the gravity of the King's wrath. But Philippine jurisprudence on the
subject has been largely influenced by American case law.
Pardon is defined as "an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual,
on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed. It is the private, though official act of the
executive magistrate, delivered to the individual for whose benefit it is
intended, and not communicated officially to the Court. ... A pardon is a
deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance." 8-a
At the time the antecedents of the present case took place, the
pardoning power was governed by the 1973 Constitution as amended
in the April 7, 1981 plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment,
grant reprieves, commutations and pardons, remit fines
and forfeitures, and with the concurrence of the
Batasang Pambansa, grant amnesty. 9
The 1981 amendments had deleted the earlier rule that clemency
could be extended only upon final conviction, implying that clemency
could be given even before conviction. Thus, petitioner's unconditional
pardon was granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987 Constitution, the
former limitation of final conviction was restored. But be that as it may,
it is our view that in the present case, it is not material when the pardon
was bestowed, whether before or after conviction, for the result would
still be the same. Having accepted the pardon, petitioner is deemed to
have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the
effects of a full and absolute pardon in relation to the decisive question
of whether or not the plenary pardon had the effect of removing the
disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently
adopted by the courts on the various consequences of pardon: "... we
adopt the broad view expressed in Cristobal v. Labrador, G.R. No.
47941, December 7, 1940, that subject to the limitations imposed by
the Constitution, the pardoning power cannot be restricted or controlled
by legislative action; that an absolute pardon not only blots out the
crime committed but removes all disabilities resulting from the
conviction. ... (W)e are of the opinion that the better view in the light of
the constitutional grant in this jurisdiction is not to unnecessarily restrict
or impair the power of the Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the rigidity of the law
to the extent of relieving completely the party ... concerned from the
accessory and resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and
several others 12 show the unmistakable application of the doctrinal
case of Ex Parte Garland, 13 whose sweeping generalizations to this
day continue to hold sway in our jurisprudence despite the fact that
much of its relevance has been downplayed by later American
decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for
the offense and the guilt of the offender; and when the
pardon is full, it releases the punishment and blots out
of existence the guilt, so that in the eye of the law the
offender is as innocent as if he had never committed
the offense. If granted before conviction, it prevents any
of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it
removes the penalties and disabilities and restores him
to all his civil rights; it makes him, as it were, a new
man, and gives him a new credit and capacity. 14
Such generalities have not been universally accepted, recognized or
approved. 15 The modern trend of authorities now rejects the unduly
broad language of the Garland case (reputed to be perhaps the most
extreme statement which has been made on the effects of a pardon).
To our mind, this is the more realistic approach. While a pardon has
generally been regarded as blotting out the existence of guilt so that in
the eye of the law the offender is as innocent as though he never
committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime
and the conviction thereof. It does not wash out the moral stain. It
involves forgiveness and not forgetfulness. 16
The better considered cases regard full pardon (at least one not based
on the offender's innocence) as relieving the party from all the punitive
consequences of his criminal act, including the disqualifications or
disabilities based on the finding of guilt. 17 But it relieves him from
nothing more. "To say, however, that the offender is a "new man", and
"as innocent as if he had never committed the offense;" is to ignore the
difference between the crime and the criminal. A person adjudged
guilty of an offense is a convicted criminal, though pardoned; he may
be deserving of punishment, though left unpunished; and the law may
regard him as more dangerous to society than one never found guilty
of crime, though it places no restraints upon him following his
conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no
amends for the past. It affords no relief for what has been suffered by
the offender. It does not impose upon the government any obligation to
make reparation for what has been suffered. "Since the offense has
been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully
done and justly suffered, and no satisfaction for it can be
required." 20 This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the
Chief Executive declared her not guilty of the crime for which she was
convicted. In the case of State v. Hazzard, 21 we find this strong
observation: "To assume that all or even a major number of pardons
are issued because of innocence of the recipients is not only to indict
our judicial system, but requires us to assume that which we all know
to be untrue. The very act of forgiveness implies the commission of
wrong, and that wrong has been established by the most complete
method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they
cannot erase the stain of bad character, which has been definitely
fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we
are prepared to concede that pardon may remit all the penal
consequences of a criminal indictment if only to give meaning to the
fiat that a pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and that once he is
absolved, he should be treated as if he were innocent. For whatever
may have been the judicial dicta in the past, we cannot perceive how
pardon can produce such "moral changes" as to equate a pardoned
convict in character and conduct with one who has constantly
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are
"historical" facts which, despite the public manifestation of mercy and
forgiveness implicit in pardon, "ordinary, prudent men will take into
account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights.
But unless expressly grounded on the person's innocence (which is
rare), it cannot bring back lost reputation for honesty, integrity and fair
dealing. 24 This must be constantly kept in mind lest we lose track of the
true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held
opinion that pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by reason of the
conviction 25 although such pardon undoubtedly restores his eligibility
for appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for
the collective protection, safety and benefit of the common good. They
cannot be compromised to favor private interests. To insist on
automatic reinstatement because of a mistaken notion that the pardon
virtually acquitted one from the offense of estafa would be grossly
untenable. A pardon, albeit full and plenary, cannot preclude the
appointing power from refusing appointment to anyone deemed to be
of bad character, a poor moral risk, or who is unsuitable by reason of
the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of the
punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred
to that when her guilt and punishment were expunged by her pardon,
this particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by
reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be
and should be evaluated and taken into account to determine
ultimately whether she can once again be entrusted with public funds.
Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city
treasurer, she must re-apply and undergo the usual procedure required
for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil
indemnity imposed upon her by the sentence. The Court cannot oblige
her. Civil liability arising from crime is governed by the Revised Penal
Code. It subsists notwithstanding service of sentence, or for any
reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioner's civil liability may only be extinguished by the
same causes recognized in the Civil Code, namely: payment, loss of
the thing due, remission of the debt, merger of the rights of creditor and
debtor, compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy Executive
Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is
AFFIRMED. No costs.

SO ORDERED.
G.R. No. 75025 September 14, 1993
VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE
HONORABLE MINISTER, LAND TRANSPORTATION AND
COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM
REGIONAL OFFICE NO. IV, respondents.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.
BELLOSILLO, J.:
Petitioner comes to us on a petition for review on certiorari of the
decision of 23 July 1985 of respondent Commission on Audit (COA)
denying his claim for payment of back wages, after he was reinstated
to the service pursuant to an executive clemency. He prays for the
extraordinary remedy of mandamus against public respondents to
enforce his claim.
Petitioner was a Supervising Lineman in the Region IV Station of the
Bureau of Telecommunications in Lucena City. On 1 April 1975,
petitioner was summarily dismissed from the service on the ground of
dishonesty in accordance with the decision of the then Ministry of
Public Works, Transportation and Communications in Adm. Case No.
975 for the loss of several telegraph poles which were located at the
Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines.
Petitioner did not appeal from the decision.
Based on the same facts obtaining in the administrative action, a
criminal case for qualified theft was filed against petitioner with the then
Court of First Instance (now Regional Trial Court) of Quezon. On 23
January 1980, the trial court rendered its decision acquitting petitioner
of the offense charged.
Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7
April 1980, petitioner's request to be reinstated was denied by the
Bureau of Telecommunications. Hence, petitioner pleaded to the
President of the Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then
Ministry of Transportation and Communications and the Civil Service
Commission, Deputy Presidential Executive Assistant Joaquin T.
Venus, Jr., by authority of the President, per Resolution No. O.P. 1800,
granted executive clemency to petitioner.
Petitioner thereafter filed with respondent COA a claim for payment of
back salaries effective 1 April 1975, the date of his dismissal from the
service. This was denied by the COA in its 5th Indorsement dated 12
October 1982 on the ground that the executive clemency granted to
him did not provide for the payment of back salaries and that he has
not been reinstated in the service.
It appears that petitioner was recalled to the service on 12 March 1984
but the records do not show whether petitioner's reinstatement was to
the same position of Supervising Lineman.1
Petitioner again filed a claim to recover his back salaries for the period
from 1 April 1975, the date of his dismissal, to 12 March 1984, when he
was reinstated. In Decision No. 362 embodied in its 3rd Indorsement
dated 23 July 1985, respondent COA denied the claim stating that the
executive clemency was silent on the payment of back wages and that
he had not rendered service during the period of his claim.
Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the
Office of the President. On 21 April 1986, Deputy Executive Secretary
Fulgencio S. Factoran, Jr., by authority of the President, denied the
appeal "due to legal and constitutional constraint,"2 holding that this
Court is the proper forum to take cognizance of the appeal
on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2,
par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987
Constitution).
Hence, petitioner filed the instant petition on the issue of whether he is
entitled to the payment of back wages after having been reinstated
pursuant to the grant of executive clemency.
In his comment to the petition, the Solicitor General recommends that
the petition be given due course and the petitioner be awarded back
wages to be determined in the light of existing laws and jurisprudence.
The Solicitor General submits that the award is implicit in the grant of
executive clemency, the ultimate objective of which is to accord full
justice to petitioner.
On the other hand, the COA asks this Court to deny the petition for the
following reasons: (a) petitioner's acquittal in the criminal case did not
necessarily free him from administrative liability; (b) petitioners
unexplained failure to appeal the decision in the administrative case
was tantamount to a waiver or renunciation of his right to back wages;
(c) the executive clemency was granted to petitioner for the purpose of
reinstatement only since it was silent on the matter of back wages; (d)
the award of back wages is allowed only if the respondent is
exonerated from the administrative charge that his suspension or
dismissal is declared illegal or unjustified by the court; and, (e)
petitioner did not render any service during the period before his
reinstatement, hence, he is not entitled to back wages based on the
"no service, no pay" rule.
The petition is meritorious.
Every civilized country recognizes, and has therefore provided for, the
pardoning power to be exercised as an act of grace and humanity, in
proper cases. Without such a power of clemency, to be exercised by
some department or functionary of a government, a country would be
most imperfect and deficient in its political morality and in that attribute
of Deity whose judgments are always tempered with money.3
Our Constitution reposes in the President the power and the exclusive
prerogative to extend executive clemency under the following
circumstances:
Except in cases of impeachment or as otherwise
provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines
and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.4
From among the different acts of executive clemency spelled out
above, the clemency granted to petitioner in the instant case partakes
of the nature of an executive pardon. A reading of Resolution No. 1800
partly quoted hereunder is enlightening:
In a 3rd Indorsement dated September 5, 1980, the
Director of Telecommunications interposed no objection
to the petition, while the Minister of Transportation and
Communications, in his 4th Indorsement dated
November 17, 1980, favorably recommended the grant
of executive clemency to petitioner for the reason that
"while it is a rule that an administrative case is separate
and distinct from a criminal case and an acquittal in the
latter case dos not ipso facto result in the exoneration
in the former case, yet an exception could arise if the
basis for the acquittal was the innocence of the
accused as in the case of petitioner Garcia.
Asked for comment pursuant to Section 43 of
Presidential Decree No. 807, the Civil service
Commission recommends the grant of executive
clemency to petitioner in view of the findings of the
court that —
instead of coming forward to the
defense of the accused who actually
was authorized to uproot or recover the
poles in question and of commending
the latter for his high sense of
responsibility in preventing losses to the
government, said high officials had
even the temerity to disown and deny
the authority they gave to the accused
 resulting in his separation from the
service and having him all alone in
defending himself against the
accusation of the very government he
tried to protect.
After a careful study, this Office is inclined to grant
executive clemency to petitioner in the light of this
decision of the court acquitting him of the crime of
qualified theft which was based on the same acts
obtaining in Administrative Case No. 975 against him,
coupled with the favorable recommendation of the
Minister of Transportation and Communications and the
Civil Service Commission.
In view of the foregoing, petitioner Vicente Garcia is
hereby granted executive clemency.5
Time and again this Court has unfolded the effects of a pardon upon
the individual to whom it is granted. In Monsanto v. Factoran,6 we have
firmly established the general rule that while a pardon has generally
been regarded as blotting out the existence of guilt so that in the eyes
of the law the offender is as innocent as though he never committed
the offense, it does not operate for all purposes. The very essence of a
pardon is forgiveness or remission of guilt and not forgetfulness . It
does not erase the fact of the commission of the crime and the
conviction thereof. Pardon frees the individual from all the penalties
and legal disabilities and restores to him all his civil rights. Unless
expressly grounded on the person's innocence, it cannot bring back
lost reputation for honesty, integrity and fair dealing. The pardoned
offender regains his eligibility for appointment to public office which
was forfeited by reason of the conviction of the offense. But since
pardon does not generally result in automatic reinstatement because
the offender has to apply for reappointment, he is not entitled to back
wages.
But, stated otherwise, if the pardon is based on the innocence of the
individual, it affirms this innocence and makes him a new man and as
innocent; as if he had not been found guilty of the offense
charged.7 When a person is given pardon because he did not truly
commit the offense, the pardon relieves the party from all punitive
consequences of his criminal act, thereby restoring to him his clean
name, good reputation and unstained character prior to the finding of
guilt.
In the case at bar, petitioner was found administratively liable for
dishonesty and consequently dismissed from the service. However, he
was later acquitted by the trial court of the charge of qualified theft
based on the very same acts for which he was dismissed. The acquittal
of petitioner by the trial court was founded not on lack of proof beyond
reasonable doubt but on the fact that petitioner did not commit the
offense imputed to him. Aside from finding him innocent of the charge,
the trial court commended petitioner for his concern and dedication as
a public servant. Verily, petitioner's innocence is the primary reason
behind the grant of executive clemency to him, bolstered by the
favorable recommendations for his reinstatement by the Ministry of
Transportation and Communications and the Civil Service
Commission.
The bestowal of executive clemency on petitioner in effect completely
obliterated the adverse effects of the administrative decision which
found him guilty of dishonesty and ordered his separation from the
service. This can be inferred from the executive clemency itself
exculpating petitioner from the administrative charge and thereby
directing his reinstatement, which is rendered automatic by the grant of
the pardon. This signifies that petitioner need no longer apply to be
reinstated to his former employment; he is restored to his office ipso
facto upon the issuance of the clemency.
Petitioner's automatic reinstatement to the government service entitles
him to back wages.8 This is meant to afford relief to petitioner who is
innocent from the start and to make reparation for what he has suffered
as a result of his unjust dismissal from the service. To rule otherwise
would defeat the very intention of the executive clemency, i.e., to give
justice to petitioner. Moreover, the right to back wages is afforded to
those with have been illegally dismissed and were thus ordered
reinstated or to those otherwise acquitted of the charges against
them.9 There is no doubt that petitioner's case falls within the situations
aforementioned to entitle him to back wages.
Further, it is worthy to note that the dismissal of petitioner was not the
result of any criminal conviction that carried with it forfeiture of the right
to hold public office, but is the direct consequence of an administrative
decision of a branch of the Executive Department over which the
President, as its head, has the power of control. The President's
control has been defined to mean "the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to the judgment of the former for the
latter." 10 In pardoning petitioner and ordering his reinstatement, the
Chief Executive exercised his power of control and set aside the
decision of the Ministry of Transportation and Communications. The
clemency nullified the dismissal of petitioner and relieved him from
administrative liability. The separation of the petitioner from the service
being null and void, he is thus entitled to back wages.
After having been declared innocent of the crime of qualified theft,
which also served as basis for the administrative charge, petitioner
should not be considered to have left his office for all legal purposes,
so that he is entitled to all the rights and privileges that accrued to him
by virtue of the office held, including back wages. 11
a thief. Consequently, this Court finds it fair and just to award petitioner
full back wages from 1 April 1975 when he was illegally dismissed, to
12 March 1984 when he was reinstated. The payment shall be without
deduction or qualification.
WHEREFORE, the petition is GRANTED. The decision of respondent
Commission on Audit dated 23 July 1985 is REVERSED and SET
ASIDE, and a new one entered ordering public respondents, the
Chairman of the Commission on Audit, the Minister (now Secretary) of
Land Transportation and Communications, the Regional Director of
Telecom Regional Office No. IV, or whoever may be sitting in office in
their stead, to pay the full amount of petitioner's back salaries from 1
April 1975 to 12 March 1984 based on his latest salary scale.
SO ORDERED.

Established jurisprudence fixes recovery of back wages to a period of

five (5) years to be paid an illegally dismissed government employee
who has been ordered reinstated. 12 The cases heretofore decided by
this Court show that petitioners therein were employees of local
governments who were removed from office by their local officials. The
reasons given for their removal were abolition of office or position,
reduction of work force, or lack of funds on the part of the local
governments concerned, which reasons were found by this Court to be
either devoid of factual basis or not sufficiently proven, otherwise, their
dismissal would have been valid and justified. In contrast, the case
before us is different, involving as it does circumstances that impel us
to deviate from the general rule previously laid down on the recovery of
back wages for five (15) years. Petitioner's reinstatement in the instant
case which was ordered pursuant to a grant of executive clemency
was effected not because of lack of sufficient proof of his commission
of the offense but that, more importantly, he did not commit the offense
charged. Verily, law, equity and justice dictate that petitioner be
afforded compassion for the embarrassment, humiliation and, above
all, injustice caused to him and his family by his unfounded dismissal.
This Court cannot help surmising the painful stigma that must have
caused petitioner, the incursion on his dignity and reputation, for
having been adjudged, albeit wrongfully, a dishonest man, and worse,
 [G.R. No. 122338. December 29, 1995.]
IN THE MATTER OF PETITION FOR HABEAS CORPUS OF WILFREDO
SUMULONG TORRES, (LYDIA DELA ROSA TORRES, Wife of Wilfredo
Sumulong Torres, and daughters RAMONA ELISA R. TORRES and
MARIA CECILIA R. TORRES), Petitioner, v. THE DIRECTOR, BUREAU
OF CORRECTIONS, NEW BILIBID PRISONS, MUNTINLUPA,
MM., Respondents.
DECISION
HERMOSISIMA, JR., J.:
We ruled consistently, viz., in Tesoro v. Director of Prison, 1 Sales v.
Director of Prisons 2 Espuelas v. Provincial Warden of Bohol 3 and Torres v.
Gonzales, 4 that, where a conditional pardonee has allegedly breached a
condition of a pardon, the President who opts to proceed against him under
Section 64 (i) of the Revised Administrative Code need not wait for a judicial
pronouncement of guilt of a subsequent crime or for his conviction therefor
by final judgment, in order to effectuate the recommitment of the pardonee
to prison. The grant of pardon, the determination of the terms and
conditions of the pardon, the determination of the occurrence of the breach
thereof; and the proper sanctions for such breach, are purely executive acts
and, thus, are not subject to judicial scrutiny. We have so ruled in the past,
and we so rule now.
In this original petition for habeas corpus, the wife and children of convicted
felon Wilfredo Sumulong Torres pray for his immediate release from prison
on the ground that the exercise of the President’s prerogative under Section
64 (i) of the Revised Administrative Code to determine the occurrence, if
any, of a breach of a condition of a pardon in violation of pardonee’s right to
due process and the constitutional presumption of innocence, constitutes a
grave abuse of discretion amounting to lack or excess of jurisdiction.
Of two counts of estafa Torres was convicted by the Court of First Instance
of Manila some time before 1979. These convictions were affirmed by the
Court of Appeals. The maximum sentence would expire on November 2,
2000. On April 18, 1979, a conditional pardon was granted to Torres by the
President of the Philippines on condition that petitioner would "not again
violate any of the penal laws of the Philippines." 5 Petitioner accepted the
conditional pardon and was consequently released from confinement. 6
On May 21, 1986, the Board of Pardons and Parole resolved to recommend
to the President the cancellation of the conditional pardon granted to Torres
because Torres had been charged with twenty counts of estafa before, and
convicted of sedition by, the Regional Trial Court of Quezon City. On
September 8, 1986, the President canceled the conditional pardon of Torres.
On October 10, 1986, then Minister of Justice Neptali A. Gonzales issued "by
authority of the President" an Order of Arrest and Recommitment 7 against
petitioner. The petitioner was accordingly arrested and confined in
Muntinlupa to serve the unexpired portion of his sentence. Torres impugned
the validity of the Order of Arrest and Recommitment in the aforecited case
of Torres v. Gonzales 8. There we ruled that: jgc:cha nrob les.co m.ph
"Succinctly put, in proceeding against a convict who has been conditional
pardoned and who is alleged to have breached the conditions of his pardon,
the Executive Department has two options: (i) to proceed against him under
Section 64 (i) of the Revised Administrative Code, or (ii) to proceed against
him under Article 159 of the Revised Penal Code . . . Here, the President has
chosen to proceed against the petitioner under Section 64 (i) of the Revised
Administrative Code. That choice is an exercise of the President’s executive
prerogative and is not subject to judicial scrutiny." 9
Now, Torres, apparently through his wife and children, seeks anew relief
from this court. Unfortunately, there is no adequate basis for us to oblige
him.
A conditional pardon is in the nature of a contract between the sovereign
power or the Chief Executive and the convicted criminal to the effect that
the former will release the latter subject to the condition that if he does not
comply with the terms of the pardon, he will be recommitted to prison to
serve the unexpired portion of the sentence or an additional one. 10 By the
pardonee’s consent to the terms stipulated in this contract, the pardonee
has thereby placed himself under the supervision of the Chief Executive or
his delegate who is duty-bound to see to it that the pardonee complies with
the terms and conditions of the pardon. Under Section 64 (I) of the Revised
Administrative Code, the Chief Executive is authorized to order "the arrest
and re-incarceration of any such person who, in his judgment, shall fail to
comply with the condition, or conditions of his pardon, parole, or suspension
of sentence." It is now a well-entrenched rule in this jurisdiction that this
exercise of presidential judgment is beyond judicial scrutiny. The
determination of the violation of the conditional pardon rests exclusively in
the sound judgment of the Chief Executive, and the pardonee, having
consented to place his liberty on conditional pardon upon the judgment of
the power that has granted it, cannot invoke the aid of the courts, however
erroneous the findings may be upon which his recommitment was ordered.
11
It matters not that in the case of Torres, he has allegedly been acquitted in
two of the three criminal cases filed against him subsequent to his
conditional pardon, and that the third case remains pending for thirteen (13)
years in apparent violation of his right to a speedy trial.
Habeas corpus lies only where the restraint of a person’s liberty has been
judicially adjudged as illegal or unlawful. In the instant petition, the
incarceration of Torres remains legal considering that, were it not for the
grant of conditional pardon which had been revoked because of a breach
thereof, the determination of which is beyond judicial scrutiny, he would
have served his final sentence for his first conviction until November 2,
2000.

Ultimately, solely vested in the Chief Executive, who in the first place was
the exclusive author of the conditional pardon and of its revocation, is the
corollary prerogative to reinstate the pardon if in his own judgment, the
acquittal of the pardonee from the subsequent charges filed against him,
warrants the same. Courts have no authority to interfere with the grant by
the President of a pardon to a convicted criminal. It has been our fortified
ruling that a final judicial pronouncement as to the guilt of a pardonee is not
a requirement for the President to determine whether or not there has been
a breach of the terms of a conditional pardon. There is likewise nil a basis for
the courts to effectuate the reinstatement of a conditional pardon revoked
by the President in the exercise of powers undisputedly solely and absolutely
loaded in his office.

WHEREFORE, the instant petition for habeas corpus is hereby DISMISSED

for lack of merit. No pronouncement as to costs.
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO
ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in
relation to Rule 65, both of the Revised Rules of Court, by Atty. Alicia
Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of
the writ of certiorari annulling and setting aside the April 1, 20131 and
April 23, 20132 Resolutions of the Commission on Elections
(COMELEC), Second Division and En bane, respectively, in SPA No.
13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito
Estrada" for having been rendered with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (2) a Petition-in-
Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be
declared the 2013 winning candidate for Mayor of the City of Manila in
view of private respondent former President Joseph Ejercito Estrada’s
(former President Estrada) disqualification to run for and hold public
office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former
President Estrada, a former President of the Republic of the
Philippines, for the crime of plunder in Criminal Case No. 26558,
entitled "People of the Philippines v. Joseph Ejercito Estrada, et al."
The dispositive part of the graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered in Criminal Case No. 26558 finding the accused, Former
President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt
of the crime of PLUNDER, defined in and penalized by Republic Act
No. 7080, as amended. On the other hand, for failure of the
prosecution to prove and establish their guilt beyond reasonable doubt,
the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward
S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the
Court hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No.
7080, as amended by Republic Act No. 7659, is Reclusion Perpetua to
Death. There being no aggravating or mitigating circumstances,
however, the lesser penalty shall be applied in accordance with Article
63 of the Revised Penal Code. Accordingly, the accused Former
President Joseph Ejercito Estrada is hereby sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute
disqualification.
The period within which accused Former President Joseph Ejercito
Estrada has been under detention shall be credited to him in full as
long as he agrees voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as
amended by Republic Act No. 7659, the Court hereby declares the
forfeiture in favor of the government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million Seven
Hundred Ninety[-]One Thousand Pesos (₱545,291,000.00),
with interest and income earned, inclusive of the amount of
Two Hundred Million Pesos (₱200,000,000.00), deposited in
the name and account of the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos
(₱189,000,000.00), inclusive of interests and income earned,
deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as
"Boracay Mansion" located at #100 11th Street, New Manila,
Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty.
Edward S. Serapio are hereby ordered cancelled and released to the
said accused or their duly authorized representatives upon
presentation of the original receipt evidencing payment thereof and
subject to the usual accounting and auditing procedures. Likewise, the
hold-departure orders issued against the said accused are hereby
recalled and declared functus oficio.4
On October 25, 2007, however, former President Gloria Macapagal
Arroyo (former President Arroyo) extended executive clemency, by
way of pardon, to former President Estrada. The full text of said pardon
states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing inmates who
have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six
and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by
the Constitution, I hereby grant executive clemency to JOSEPH
EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder
and imposed a penalty of Reclusion Perpetua. He is hereby restored to
his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in
full, including all writs and processes issued by the Sandiganbayan in
pursuance hereof, except for the bank account(s) he owned before his
tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA,
this pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day of October, in
the year of Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received
and accepted"6 the pardon by affixing his signature beside his
handwritten notation thereon.
On November 30, 2009, former President Estrada filed a Certificate of
Candidacy7 for the position of President. During that time, his
candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-
024 (DC), a "Petition to Deny Due Course and Cancel Certificate of
Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA
No. 09-028 (DC), a petition for "Disqualification as Presidential
Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No.
09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from
Running as President due to Constitutional Disqualification and
Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed by
Mary Lou Estrada. In separate Resolutions8 dated January 20, 2010 by
the COMELEC, Second Division, however, all three petitions were
effectively dismissed on the uniform grounds that (i) the Constitutional
proscription on reelection applies to a sitting president; and (ii) the
pardon granted to former President Estrada by former President Arroyo
restored the former’s right to vote and be voted for a public office. The
subsequent motions for reconsideration thereto were denied by the
COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections,
however, former President Estrada only managed to garner the second
highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought
recourse to this Court and filed a petition for certiorari, which was
docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v.
Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in
a Resolution9 dated August 31, 2010, the Court dismissed the
aforementioned petition on the ground of mootness considering that
former President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into
the political arena, and filed a Certificate of Candidacy,10 this time vying
for a local elective post, that ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a
Petition for Disqualification against former President Estrada before the
COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos
Vidal anchored her petition on the theory that "[Former President
Estrada] is Disqualified to Run for Public Office because of his
Conviction for Plunder by the Sandiganbayan in Criminal Case No.
26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith
Perpetual Absolute Disqualification."11 She relied on Section 40 of the
Local Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving
sentence; (b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here
or abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgmentfor subversion, insurrection, rebellion, or for any offense
for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any public office, unless he has been given
plenary pardon or granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division,
dismissed the petition for disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED for utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken judicial
cognizance of the consolidated resolution for SPA No. 09-028 (DC)
and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution
affirming it, this Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof sufficient to
reverse the standing pronouncement of this Commission declaring
categorically that [former President Estrada’s] right to seek public office
has been effectively restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission has already
spoken, it will no longer engage in disquisitions of a settled matter lest
indulged in wastage of government resources."13
The subsequent motion for reconsideration filed by Risos-Vidal was
denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing
the present petition. She presented five issues for the Court’s
resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT RESPONDENT
ESTRADA’S PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT
ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF
MANILA UNDER SEC. 40 OF THE LOCAL
GOVERNMENTCODE OF 1991 FOR HAVING BEEN
CONVICTED OF PLUNDER, AN OFFENSE INVOLVING
MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY
RESOLVED IN THE CASES OF "PORMENTO VS.
ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO
DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM
RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT RULING THAT RESPONDENT
ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE
DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT HAVING EXERCISED ITS POWER
TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA
IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN
FOR PUBLIC OFFICE BECAUSE OF HIS PERPETUAL AND
ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE
AND TO VOTE RESULTING FROM HIS CRIMINAL
CONVICTION FOR PLUNDER.14
While this case was pending beforethe Court, or on May 13, 2013, the
elections were conducted as scheduled and former President Estrada
was voted into office with 349,770 votes cast in his favor. The next day,
the local board of canvassers proclaimed him as the duly elected
Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for
the position of Mayor, moved for leave to intervene in this case. His
motion was granted by the Court in a Resolution15 dated June 25, 2013.
Lim subscribed to Risos-Vidal’s theory that former President Estrada is
disqualified to run for and hold public office as the pardon granted to
the latter failed to expressly remit his perpetual disqualification.
Further, given that former President Estrada is disqualified to run for
and hold public office, all the votes obtained by the latter should be
declared stray, and, being the second placer with 313,764 votes to his
name, he (Lim) should be declared the rightful winning candidate for
the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for resolution, the
petition filed by Risos-Vidal actually presents only one essential
question for resolution by the Court, that is, whether or not the
COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in ruling that former President Estrada is qualified
to vote and be voted for in public office as a result of the pardon
granted to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the
pardon granted to former President Estrada was conditional as
evidenced by the latter’s express acceptance thereof. The
"acceptance," she claims, is an indication of the conditional natureof
the pardon, with the condition being embodied in the third Whereas
Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office."
She explains that the aforementioned commitment was what impelled
former President Arroyo to pardon former President Estrada, without it,
the clemency would not have been extended. And any breach thereof,
that is, whenformer President Estrada filed his Certificate of Candidacy
for President and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be recommitted to prison
to serve the unexpired portion of his sentence x x x and disqualifies
him as a candidate for the mayoralty [position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon
which former President Estrada mustbe disqualified from running for
and holding public elective office is actually the proscription found in
Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues
that the crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral turpitude; such
that former President Estrada must be disqualified to run for and hold
public elective office.
Even with the pardon granted to former President Estrada, however,
Risos-Vidal insists that the same did not operate to make available to
former President Estrada the exception provided under Section 12 of
the OEC, the pardon being merely conditional and not absolute or
plenary. Moreover, Risos-Vidal puts a premium on the ostensible
requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration
of the right to hold publicoffice, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory
penalties.– The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the period
of the sentence as the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though pardoned
as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not
enough that a pardon makes a general statement that such pardon
carries with it the restoration of civil and political rights. By virtue of
Articles 36 and 41, a pardon restoring civil and political rights without
categorically making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public office, or the
right of suffrage; nor shall it remit the accessory penalties of civil
interdiction and perpetual absolute disqualification for the principal
penalties of reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as mandatory
requirements that shun a general or implied restoration of civil and
political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices
Teodoro R. Padilla and Florentino P. Feliciano in Monsanto v.
Factoran, Jr.18 to endorse her position that "[t]he restoration of the right
to hold public office to one who has lost such right by reason of
conviction in a criminal case, but subsequently pardoned, cannot be
left to inference, no matter how intensely arguable, but must be
statedin express, explicit, positive and specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal
reckons that "such express restoration is further demanded by the
existence of the condition in the [third] [W]hereas [C]lause of the
pardon x x x indubitably indicating that the privilege to hold public office
was not restored to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for public
respondent COMELEC, maintains that "the issue of whether or not the
pardon extended to [former President Estrada] restored his right to run
for public office had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-
028 and 09-104, there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada] disqualified to
run and be voted as mayor of the City of Manila in the absence of any
new argument that would warrant its reversal. To be sure, public
respondent COMELEC correctly exercised its discretion in taking
judicial cognizance of the aforesaid rulings which are known toit and
which can be verified from its own records, in accordance with Section
2, Rule 129 of the Rules of Court on the courts’ discretionary power to
take judicial notice of matters which are of public knowledge, orare
capable of unquestionable demonstration, or ought to be known to
them because of their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is apparent
that [former President Estrada’s] conviction for plunder disqualifies him
from running as mayor of Manila under Section 40 of the [LGC], the
subsequent grant of pardon to him, however, effectively restored his
right to run for any public office."21 The restoration of his right to run for
any public office is the exception to the prohibition under Section 40 of
the LGC, as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the
express restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid interpretation of
Article 36 and Article 41 of the [RPC] x x x would be stretching too
much the clear and plain meaning of the aforesaid provisions."22 Lastly,
taking into consideration the third Whereas Clause of the pardon
granted to former President Estrada, the OSG supports the position
that it "is not an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions."24
For his part, former President Estrada presents the following significant
arguments to defend his stay in office: that "the factual findings of
public respondent COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the conduct of the elections,
[relative to the absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective office] are
binding [and conclusive] on this Honorable Supreme Court;" that he
"was granted an absolute pardon and thereby restored to his full civil
and political rights, including the right to seek public elective office such
as the mayoral (sic) position in the City of Manila;" that "the majority
decision in the case of Salvacion A. Monsanto v. Fulgencio S.
Factoran, Jr.,which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that there was no
discussion whatsoever in the ratio decidendi of the Monsanto case as
to the alleged necessity for an expressed restoration of the ‘right to
hold public office in the pardon’ as a legal prerequisite to remove the
subject perpetual special disqualification;" that moreover, the "principal
question raised in this Monsanto case is whether or not a public officer,
who has been granted an absolute pardon by the Chief Executive, is
entitled to reinstatement toher former position without need of a new
appointment;" that his "expressed acceptance [of the pardon] is not
proof that the pardon extended to [him] is conditional and not
absolute;" that this case is a mere rehash of the casesfiled against him
during his candidacy for President back in 2009-2010; that Articles 36
and 41 of the Revised Penal Code "cannot abridge or diminish the
pardoning power of the President expressly granted by the
Constitution;" that the text of the pardon granted to him substantially, if
not fully, complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said
document that he was "restored to his civil and political rights;" that
since pardon is an act of grace, it must be construed favorably in favor
of the grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileños who
voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully
restored allhis civil and political rights, which naturally includes the right
to seek public elective office, the focal point of this controversy. The
wording of the pardon extended to former President Estrada is
complete, unambiguous, and unqualified. It is likewise unfettered by
Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the
pardon is that the same in fact conforms to Articles 36 and 41 of the
Revised Penal Code. Recall that the petition for disqualification filed by
Risos-Vidal against former President Estrada, docketed as SPA No.
13-211 (DC), was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving moral
turpitude, former President Estrada must be disqualified to run for and
hold public elective office notwithstanding the fact that he is a grantee
of a pardon that includes a statement expressing "[h]e is hereby
restored to his civil and political rights." Risos-Vidal theorizes that
former President Estrada is disqualified from running for Mayor of
Manila inthe May 13, 2013 Elections, and remains disqualified to hold
any local elective post despite the presidential pardon extended to him
in 2007 by former President Arroyo for the reason that it (pardon) did
not expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his (former
President Estrada) right to vote and bevoted upon for public office. She
invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.
It is insisted that, since a textual examination of the pardon given to
and accepted by former President Estrada does not actually specify
which political right is restored, it could be inferred that former
President Arroyo did not deliberately intend to restore former President
Estrada’s rights of suffrage and to hold public office, orto otherwise
remit the penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based on the
pardon’s text.
The pardoning power of the President cannot be limited by legislative
action.
The 1987 Constitution, specifically Section 19 of Article VII and Section
5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of
executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only
instances in which the President may not extend pardon remain to be
in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws,
rules and regulations in which there was no favorable recommendation
coming from the COMELEC. Therefore, it can be argued that any act
of Congress by way of statute cannot operate to delimit the pardoning
power of the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were
decided under the 1935 Constitution,wherein the provision granting
pardoning power to the President shared similar phraseology with what
is found in the present 1987 Constitution, the Court then unequivocally
declared that "subject to the limitations imposed by the Constitution,
the pardoning power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in Monsanto v.
Factoran, Jr.29 thereby establishing that, under the present Constitution,
"a pardon, being a presidential prerogative, should not be
circumscribed by legislative action." Thus, it is unmistakably the long-
standing position of this Court that the exercise of the pardoning power
is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided
for by the Constitution.
This doctrine of non-diminution or non-impairment of the President’s
power of pardon by acts of Congress, specifically through legislation,
was strongly adhered to by an overwhelming majority of the framers of
the 1987 Constitution when they flatly rejected a proposal to carve out
an exception from the pardoning power of the President in the form of
"offenses involving graft and corruption" that would be enumerated and
defined by Congress through the enactment of a law. The following is
the pertinent portion lifted from the Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to
introduce an amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of
corrupt practices laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of
corrupt practices may include a very little offense like stealing ₱10;
second, which I think is more important, I get the impression, rightly or
wrongly, that subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and dishonest and,
consequently, their acts will be lacking in wisdom. Therefore, this
Article seems to contribute towards the creation of an anti-President
Constitution or a President with vast responsibilities but no
corresponding power except to declare martial law. Therefore, I
request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of
Commissioner Davide because of the fact that similar to the provisions
on the Commission on Elections, the recommendation of that
Commission is required before executive clemency isgranted because
violations of the election laws go into the very political life of the
country.
With respect to violations of our Corrupt Practices Law, we felt that it is
also necessary to have that subjected to the same condition because
violation of our Corrupt Practices Law may be of such magnitude as to
affect the very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress that will
provide for the classification as to which convictions will still require
prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such
magnitude as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in its collective
wisdom will exclude those petty crimes of corruption as not to require
any further stricture on the exercise of executive clemency because, of
course, there is a whale of a difference if we consider a lowly clerk
committing malversation of government property or funds involving one
hundred pesos. But then, we also anticipate the possibility that the
corrupt practice of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and then he goes
through all the judicial processes and later on, a President who may
have close connections with him or out of improvident compassion may
grant clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on substantial
distinctions between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the word GROSS
or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction
because "GRAVE" or "GROSS" can be misconstrued by putting it
purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially
an executive power, and that is precisely why it is called executive
clemency. In this sentence, which the amendment seeks to delete, an
exception is being made. Congress, which is the legislative arm, is
allowed to intrude into this prerogative of the executive. Then it limits
the power of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the power of
Congress to only corrupt practices laws. There are many other crimes
more serious than these. Under this amendment, Congress cannot
limit the power of executive clemency in cases of drug addiction and
drug pushing which are very, very serious crimes that can endanger
the State; also, rape with murder, kidnapping and treason. Aside from
the fact that it is a derogation of the power of the President to grant
executive clemency, it is also defective in that it singles out just one
kind of crime. There are far more serious crimes which are not
included.
MR. REGALADO. I will just make one observation on that. We admit
that the pardoning power is anexecutive power. But even in the
provisions on the COMELEC, one will notice that constitutionally, it is
required that there be a favorable recommendation by the Commission
on Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that
and as a member of the Committee, has explained in the committee
meetings we had why he sought the inclusion of this particular
provision. May we call on Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We
have just approved the Article on Accountability of Public Officers.
Under it, it is mandated that a public office is a public trust, and all
government officers are under obligation to observe the utmost of
responsibility, integrity, loyalty and efficiency, to lead modest lives and
to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of the concept
that a public office is a public trust, the violation is itself a violation not
only of the economy but the moral fabric of public officials. And that is
the reason we now want that if there is any conviction for the violation
of the Anti-Graft and Corrupt Practices Act, which, in effect, is a
violation of the public trust character of the public office, no pardon
shall be extended to the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of the
convicting court, but the Committee left it entirely to the legislature to
formulate the mechanics at trying, probably, to distinguish between
grave and less grave or serious cases of violation of the Anti-Graft and
Corrupt Practices Act. Perhaps this is now the best time, since we
have strengthened the Article on Accountability of Public Officers, to
accompany it with a mandate that the President’s right to grant
executive clemency for offenders or violators of laws relating to the
concept of a public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by
deletion.
Madam President, over and over again, we have been saying and
arguing before this Constitutional Commission that we are
emasculating the powers of the presidency, and this provision to me is
another clear example of that. So, I speak against this provision. Even
the 1935 and the 1973 Constitutions do not provide for this kind of
provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the
amendment by deletion because I am in sympathy with the stand of
Commissioner Francisco "Soc" Rodrigo. I do believe and we should
remember that above all the elected or appointed officers of our
Republic, the leader is the President. I believe that the country will be
as the President is, and if we systematically emasculate the power of
this presidency, the time may come whenhe will be also handcuffed
that he will no longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular
line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the
approval of proposals, but now I find that the proposal of
Commissioner Tan is worthy of approval of this body.
Why are we singling out this particular offense? There are other crimes
which cast a bigger blot on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost absolute
power of our Chief Executive in deciding whether to pardon, to reprieve
or to commute the sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and
after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if this is
allowed to stay, it would mean that the President’s power togrant
pardon or reprieve will be limited to the cases decided by the Anti-Graft
Court, when as already stated, there are many provisions inthe
Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits
the consideration of the exercise of executive clemency, usually under
Article V of the Revised Penal Code the judge will recommend such
exercise of clemency. And so, I am in favor of the amendment
proposed by Commissioner Tan for the deletion of this last sentence in
Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip
more powers from the President. In case of other criminals convicted in
our society, we extend probation to them while in this case, they have
already been convicted and we offer mercy. The only way we can offer
mercy to them is through this executive clemency extended to them by
the President. If we still close this avenue to them, they would be
prejudiced even worse than the murderers and the more vicious killers
in our society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit
this to the floor and also because of the objection of the main
proponent, Commissioner Davide. So we feel that the Commissioners
should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed
amendment of Commissioner Tan to delete the last sentence of
Section 17 appearing on lines 7, 8 and 9, please raise their hand.
(Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised
their hand.)
The results show 34 votes in favor and 4 votes against; the
amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and
41 of the Revised Penal Code cannot, in any way, serve to abridge or
diminish the exclusive power and prerogative of the President to
pardon persons convicted of violating penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said
Articles contain specific textual commands which must be strictly
followed in order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration
of the right to hold publicoffice, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory
penalties.– The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the period
of the sentence as the case may be, and that of perpetual absolute
disqualification which the offender shall suffer even though pardoned
as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as
proposed by Risos-Vidal, is unwarranted, especially so if it will defeat
or unduly restrict the power of the President to grant executive
clemency.
It is well-entrenched in this jurisdiction 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. Verba
legis non est recedendum. From the words of a statute there should be
no departure.31 It is this Court’s firm view that the phrase in the
presidential pardon at issue which declares that former President
Estrada "is hereby restored to his civil and political rights" substantially
complies with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal
that there was no express remission and/or restoration of the rights of
suffrage and/or to hold public office in the pardon granted to former
President Estrada, as required by Articles 36 and 41 of the Revised
Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal
provisions must be followed by the President, as they do not abridge or
diminish the President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s pardoning power.
Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form.
They only provide a procedural prescription. They are not concerned
with areas where or the instances when the President may grant
pardon; they are only concerned with how he or she is to exercise such
power so that no other governmental instrumentality needs to intervene
to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes
to include in the pardon the restoration of the rights of suffrage and to
hold public office, or the remission of the accessory penalty of
perpetual absolute disqualification,he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions
clearly, directly, firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such restoration or
remission, subject to a prescription on the manner by which he or she
is to state it.32
With due respect, I disagree with the overbroad statement that
Congress may dictate as to how the President may exercise his/her
power of executive clemency. The form or manner by which the
President, or Congress for that matter, should exercise their respective
Constitutional powers or prerogatives cannot be interfered with unless
it is so provided in the Constitution. This is the essence of the principle
of separation of powers deeply ingrained in our system of government
which "ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere."33 Moreso, this fundamental
principle must be observed if noncompliance with the form imposed by
one branch on a co-equal and coordinate branch will result into the
diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should
be construed in a way that will give full effect to the executive clemency
granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the
pardon which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said codal
provisions must be construed to harmonize the power of Congress to
define crimes and prescribe the penalties for such crimes and the
power of the President to grant executive clemency. All that the said
provisions impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory penalties unless the
President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive
clemency and, specifically, to decide to pardon the principal penalty
while excluding its accessory penalties or to pardon both. Thus,
Articles 36 and 41 only clarify the effect of the pardon so decided upon
by the President on the penalties imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former President
Estrada shows that both the principal penalty of reclusion perpetua and
its accessory penalties are included in the pardon. The first sentence
refers to the executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal penalty
pardoned which relieved him of imprisonment. The sentence that
followed, which states that "(h)e is hereby restored to his civil and
political rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua. Hence, even if
we apply Articles 36 and 41 of the Revised Penal Code, it is
indubitable from the textof the pardon that the accessory penalties of
civil interdiction and perpetual absolute disqualification were expressly
remitted together with the principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized
by law as falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the
"Citizenship Retention and Reacquisition Act of 2003," reads as
follows:
Section 5. Civil and Political Rights and Liabilities.– Those who retain
or reacquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions: (1) Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and
swear an oath of allegiance to the Republic of the Philippines
and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to
the country where they took that oath; (4) Those intending to
practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such
practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office
in the country of which theyare naturalized citizens;
and/or
(b) are in active service as commissioned or non
commissioned officers in the armed forces of the
 country which they are naturalized citizens. (Emphases
supplied.)
No less than the International Covenant on Civil and Political Rights, to
which the Philippines is a signatory, acknowledges the existence of
said right. Article 25(b) of the Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in Article 2 and without unreasonable
restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors[.] (Emphasis
supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court
unequivocally referred to the right to seek public elective office as a
political right, to wit:
Stated differently, it is an additional qualification for elective office
specific only to Filipino citizens who re-acquire their citizenship under
Section 3 of R.A. No. 9225. It is the operative act that restores their
right to run for public office. The petitioner’s failure to comply there with
in accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political right to
seek elective office. Unless she executes a sworn renunciation of her
Australian citizenship, she is ineligible to run for and hold any elective
office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective
office is unequivocally considered as a political right. Hence, the Court
reiterates its earlier statement that the pardon granted to former
President Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted tohim, he regained his
FULL civil and political rights – including the right to seek elective
office.
On the other hand, the theory of Risos-Vidal goes beyond the plain
meaning of said penal provisions; and prescribes a formal requirement
that is not only unnecessary but, if insisted upon, could be in
derogation of the constitutional prohibition relative to the principle that
the exercise of presidential pardon cannot be affected by legislative
action.
Risos-Vidal relied heavily on the separate concurring opinions in
Monsanto v. Factoran, Jr.36 to justify her argument that an absolute
pardon must expressly state that the right to hold public office has
been restored, and that the penalty of perpetual absolute
disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned
views of Justices Teodoro R. Padilla and Florentino P. Feliciano are to
be respected, they do not form partof the controlling doctrine nor to be
considered part of the law of the land. On the contrary, a careful
reading of the majority opinion in Monsanto, penned by no less than
Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36
and 41 of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in extending
executive clemency, even if the intent of the President can otherwise
be deduced from the text or words used in the pardon. Furthermore, as
explained above, the pardon here is consistent with, and not contrary
to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of
the LGC in relation to Section 12 of the OEC was removed by his
acceptance of the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for
any elective local position. Risos-Vidal argues that former President
Estrada is disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence[.] (Emphasis
supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it
provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary
pardon or granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s
conviction for plunder disqualifies him from running for the elective
local position of Mayor of the City of Manila under Section 40(a) of the
LGC. However, the subsequent absolute pardon granted to former
President Estrada effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a) of the LGC in
relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the
LGC is worded in absolute terms, Section 12 of the OEC provides a
legal escape from the prohibition – a plenary pardon or amnesty. In
other words, the latter provision allows any person who has been
granted plenary pardon or amnesty after conviction by final judgment of
an offense involving moral turpitude, inter alia, to run for and hold any
public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to
candidates running for local elective positions is not unprecedented. In
Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the
aforementioned provision as one of the legal remedies that may be
availed of to disqualify a candidate in a local election filed any day after
the last day for filing of certificates of candidacy, but not later than the
date of proclamation.38 The pertinent ruling in the Jalosjos case is
quoted as follows:
What is indisputably clear is that false material representation of
Jalosjos is a ground for a petition under Section 78. However, since the
false material representation arises from a crime penalized by prision
mayor, a petition under Section 12 ofthe Omnibus Election Code or
Section 40 of the Local Government Code can also be properly filed.
The petitioner has a choice whether to anchor his petition on Section
12 or Section 78 of the Omnibus Election Code, or on Section 40 of the
Local Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to
petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to make the
pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of
the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office," neither
makes the pardon conditional, nor militate against the conclusion that
former President Estrada’s rights to suffrage and to seek public
elective office have been restored.
This is especially true as the pardon itself does not explicitly impose a
condition or limitation, considering the unqualified use of the term "civil
and political rights"as being restored. Jurisprudence educates that a
preamble is not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the enactment, usually
introduced by the word "whereas."40 Whereas clauses do not form part
of a statute because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the whereas clause at
issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to
make its effectivity contingent upon the fulfilment of the aforementioned
commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of
COMELEC Commissioner Maria Gracia Padaca’s separate concurring
opinion in the assailed April 1, 2013 Resolution of the COMELEC in
SPA No. 13-211 (DC), which captured the essence of the legal effect
of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January
2010 Resolution did not conclude upon. Here, Petitioner Risos-Vidal
raised the same argument with respect to the 3rd "whereas clause" or
preambular paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek any elective
position or office." On this contention, the undersigned reiterates the
ruling of the Commission that the 3rd preambular paragraph does not
have any legal or binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein Respondent. This ruling
is consistent with the traditional and customary usage of preambular
paragraphs. In the case of Echegaray v. Secretary of Justice, the
Supreme Court ruled on the legal effect of preambular paragraphs or
whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely
an introduction to show its intent or purposes. It cannot be the origin of
rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its
operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former
ought to have explicitly stated the same in the text of the pardon itself.
Since former President Arroyo did not make this an integral part of the
decree of pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s silence on
former President Estrada’s decision torun for President in the May
2010 elections against, among others, the candidate of the political
party of former President Arroyo, after the latter’s receipt and
acceptance of the pardon speaks volume of her intention to restore him
to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by
the President is in issue, the Court must turn to the only evidence
available to it, and that is the pardon itself. From a detailed review
ofthe four corners of said document, nothing therein gives an iota of
intimation that the third Whereas Clause is actually a limitation,
proviso, stipulation or condition on the grant of the pardon, such that
the breach of the mentioned commitment not to seek public office will
result ina revocation or cancellation of said pardon. To the Court, what
it is simply is a statement of fact or the prevailing situation at the time
the executive clemency was granted. It was not used as a condition to
the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the third Whereas
Clausewas one of the reasons to grant the pardon, the pardon itself
does not provide for the attendant consequence of the breach thereof.
This Court will be hard put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which civil or
political rights were restored if the Court were to take the road
suggested by Risos-Vidal that the statement "[h]e is hereby restored to
his civil and political rights" excludes the restoration of former President
Estrada’s rights to suffrage and to hold public office. The aforequoted
text ofthe executive clemency granted does not provide the Court with
any guide asto how and where to draw the line between the included
and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for
resolution is not whether the pardon is contingent on the condition that
former President Estrada will not seek janother elective public office,
but it actually concerns the coverage of the pardon – whether the
pardon granted to former President Estrada was so expansive as to
have restored all his political rights, inclusive of the rights of suffrage
and to hold public office. Justice Leonen is of the view that the pardon
in question is not absolute nor plenary in scope despite the statement
that former President Estrada is "hereby restored to his civil and
political rights," that is, the foregoing statement restored to former
President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of suffrage and to
hold public office. He adds that had the President chosen to be so
expansive as to include the rights of suffrage and to hold public office,
she should have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and political
rights," to the mind of the Court, iscrystal clear – the pardon granted to
former President Estrada was absolute, meaning, it was not only
unconditional, it was unrestricted in scope, complete and plenary in
character, as the term "political rights"adverted to has a settled
meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission
of the qualifying word "full" can be construed as excluding the
restoration of the rights of suffrage and to hold public office. There
appears to be no distinction as to the coverage of the term "full political
rights" and the term "political rights" used alone without any
qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one’s understanding. More so, it will be
extremely difficult to identify which of the political rights are restored by
the pardon, when the text of the latter is silent on this matter.
Exceptions to the grant of pardon cannot be presumed from the
absence of the qualifying word "full" when the pardon restored the
"political rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon
granted to former President Estrada was absolute in the absence of a
clear, unequivocal and concrete factual basis upon which to anchor or
support the Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the pardon
can withstand close scrutiny even under the provisions of Articles 36
and 41 of the Revised Penal Code.
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the assailed
COMELEC Resolutions were issued in a "whimsical, arbitrary or
capricious exercise of power that amounts to an evasion orrefusal to
perform a positive duty enjoined by law" or were so "patent and gross"
as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it
unnecessary to separately discuss Lim's petition-in-intervention, which
substantially presented the same arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-inintervention are
DISMISSED. The Resolution dated April 1, 2013 of the Commission on
Elections, Second Division, and the Resolution dated April 23, 2013 of
the Commission on Elections, En bane, both in SPA No. 13-211 (DC),
are AFFIRMED.
SO ORDERED.

The COMELEC did not commit grave abuse of discretion amounting to

lack or excess of jurisdiction in issuing the assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the

COMELEC did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst

actions of the COMELEC is confined only to instances of grave abuse
of discretion amounting to patentand substantial denial of due process,
because the COMELEC is presumed to be most competent in matters
falling within its domain.43

As settled in jurisprudence, grave abuse of discretion is the arbitrary

exercise of power due to passion, prejudice or personal hostility; or the
whimsical, arbitrary, or capricious exercise of power that amounts to an
evasion or refusal to perform a positive duty enjoined by law or to act
at all in contemplation of law. For an act to be condemned as having
been done with grave abuse of discretion, such an abuse must be
patent and gross.44
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA
MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina
Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO
BIAZON, and SENATOR FRANCISCO TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON.
ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.
OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L.
SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN,
FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its
National President, Jose Aguila Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President,
Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-
AVENCEÑA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE
PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS
ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions
for certiorari and prohibition are issues relating to, and borne by, an
agreement forged in the turn of the last century between the Republic
of the Philippines and the United States of America -the Visiting Forces
Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America
forged a Military Bases Agreement which formalized, among others,
the use of installations in the Philippine territory by United States
military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the
parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.1
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States negotiated
for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-
US Treaty of Friendship, Cooperation and Security which, in effect,
would have extended the presence of US military bases in the
Philippines.2 With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two
countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the
Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on "the complementing strategic
interests of the United States and the Philippines in the Asia-Pacific
region." Both sides discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft text,
which in turn resulted to a final series of conferences and
negotiations3 that culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved the VFA, which
was respectively signed by public respondent Secretary Siazon and
Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent
Secretary of Foreign Affairs, ratified the VFA.4
On October 6, 1998, the President, acting through respondent
Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,5 the Instrument of Ratification, the letter of
the President6 and the VFA, for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn, referred the
VFA to its Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security, chaired by
Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two
Committees.7
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 4438 recommending the concurrence of the Senate to
the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved
by the Senate, by a two-thirds (2/3) vote9 of its members. Senate
Resolution No. 443 was then re-numbered as Senate Resolution No.
18.10
On June 1, 1999, the VFA officially entered into force after an
Exchange of Notes between respondent Secretary Siazon and United
States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides
for the mechanism for regulating the circumstances and conditions
under which US Armed Forces and defense personnel may be present
in the Philippines, and is quoted in its full text, hereunder:
"Article I
Definitions
"As used in this Agreement, ‘United States personnel’ means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
"Within this definition:
"1. The term ‘military personnel’ refers to military
members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to individuals
who are neither nationals of, nor ordinary residents in
the Philippines and who are employed by the United
States armed forces or who are accompanying the
United States armed forces, such as employees of the
American Red Cross and the United Services
Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity inconsistent
with the spirit of this agreement, and, in particular, from any political
activity in the Philippines. The Government of the United States shall
take all measures within its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate
the admission of United States personnel and their
departure from the Philippines in connection with
activities covered by this agreement.
"2. United States military personnel shall be exempt
from passport and visa regulations upon entering and
departing the Philippines.
"3. The following documents only, which shall be
presented on demand, shall be required in respect of
United States military personnel who enter the
Philippines:
"(a) personal identity card issued by the
appropriate United States authority showing full
name, date of birth, rank or grade and service
number (if any), branch of service and
photograph;
"(b) individual or collective document issued by
the appropriate United States authority,
authorizing the travel or visit and identifying the
individual or group as United States military
personnel; and
"(c) the commanding officer of a military aircraft
or vessel shall present a declaration of health,
and when required by the cognizant
representative of the Government of the
Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft
or United States vessels or cargoes thereon
shall be conducted by the United States
commanding officer in accordance with the
international health regulations as promulgated
by the World Health Organization, and mutually
agreed procedures.
"4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and departure of
the Philippines.
"5. If the Government of the Philippines has requested
the removal of any United States personnel from its
territory, the United States authorities shall be
responsible for receiving the person concerned within
its own territory or otherwise disposing of said person
outside of the Philippines.
"Article IV
 Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid, without
test or fee, a driving permit or license issued by the
appropriate United States authority to United States
personnel for the operation of military or official
vehicles.
"2. Vehicles owned by the Government of the United
States need not be registered, but shall have
appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over
United States personnel with respect to offenses
committed within the Philippines and punishable under
the law of the Philippines.
(b) United States military authorities shall have the right
to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the
military law of the United States over United States
personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over United
States personnel with respect to offenses, including offenses relating to
the security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive
jurisdiction over United States personnel with respect to
offenses, including offenses relating to the security of
the United States, punishable under the laws of the
United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3
of this article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law
relating to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the
following rules shall apply:
(a) Philippine authorities shall have the primary right to
exercise jurisdiction over all offenses committed by
United States personnel, except in cases provided for
in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the
primary right to exercise jurisdiction over United States
personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or
security of the United States or offenses solely
against the property or person of United States
personnel; and
(2) offenses arising out of any act or omission
done in performance of official duty.
(c) The authorities of either government may
request the authorities of the other government
to waive their primary right to exercise
jurisdiction in a particular case.
(d) Recognizing the responsibility of the United
States military authorities to maintain good
order and discipline among their forces,
Philippine authorities will, upon request by the
United States, waive their primary right to
exercise jurisdiction except in cases of
particular importance to the Philippines. If the
Government of the Philippines determines that
the case is of particular importance, it shall
communicate such determination to the United
States authorities within twenty (20) days after
the Philippine authorities receive the United
States request.
(e) When the United States military commander
determines that an offense charged by
authorities of the Philippines against United
states personnel arises out of an act or
omission done in the performance of official
duty, the commander will issue a certificate
setting forth such determination. This certificate
will be transmitted to the appropriate authorities
of the Philippines and will constitute sufficient
proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In
those cases where the Government of the
Philippines believes the circumstances of the
case require a review of the duty certificate,
United States military authorities and Philippine
authorities shall consult immediately. Philippine
authorities at the highest levels may also
present any information bearing on its validity.
United States military authorities shall take full
account of the Philippine position. Where
appropriate, United States military authorities
will take disciplinary or other action against
offenders in official duty cases, and notify the
Government of the Philippines of the actions
taken.
(f) If the government having the primary right
does not exercise jurisdiction, it shall notify the
authorities of the other government as soon as
possible.
(g) The authorities of the Philippines and the
United States shall notify each other of the
disposition of all cases in which both the
authorities of the Philippines and the United
States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the
Philippines and United States shall assist each other in the arrest of
United States personnel in the Philippines and in handling them over to
authorities who are to exercise jurisdiction in accordance with the
provisions of this article.
"5. United States military authorities shall promptly notify Philippine
authorities of the arrest or detention of United States personnel who
are subject of Philippine primary or exclusive jurisdiction. Philippine
authorities shall promptly notify United States military authorities of the
arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel
available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall
present its position to the United States Government regarding
custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of any obligations
under this paragraph. The one-year period will not include the time
necessary to appeal. Also, the one-year period will not include any time
during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to
arrange for the presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the carrying out of all
necessary investigation into offenses and shall cooperate in providing
for the attendance of witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.
"8. When United States personnel have been tried in accordance with
the provisions of this Article and have been acquitted or have been
convicted and are serving, or have served their sentence, or have had
their sentence remitted or suspended, or have been pardoned, they
may not be tried again for the same offense in the Philippines. Nothing
in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules
of discipline arising from the act or omission which constituted an
offense for which they were tried by Philippine authorities.
"9. When United States personnel are detained, taken into custody, or
prosecuted by Philippine authorities, they shall be accorded all
procedural safeguards established by the law of the Philippines. At the
minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific
charge or charges made against them and to have
reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and
to cross examine such witnesses;
(d) To present evidence in their defense and to have
compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of
their own choice on the same basis as nationals of the
Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited
regularly by United States authorities, and to have such
authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who
have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by
appropriate Philippine and United States authorities. United States
Personnel serving sentences in the Philippines shall have the right to
visits and material assistance.
"11. United States personnel shall be subject to trial only in Philippine
courts of ordinary jurisdiction, and shall not be subject to the
jurisdiction of Philippine military or religious courts.
"Article VI
Claims
"1. Except for contractual arrangements, including
United States foreign military sales letters of offer and
acceptance and leases of military equipment, both
governments waive any and all claims against each
other for damage, loss or destruction to property of
each other’s armed forces or for death or injury to their
military and civilian personnel arising from activities to
which this agreement applies.
"2. For claims against the United States, other than
contractual claims and those to which paragraph 1
applies, the United States Government, in accordance
with United States law regarding foreign claims, will pay
just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or
death, caused by acts or omissions of United States
personnel, or otherwise incident to the non-combat
activities of the United States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials,
supplies, and other property imported into or acquired
in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property
shall remain with the United States, which may remove
such property from the Philippines at any time, free
from export duties, taxes, and other similar charges.
The exemptions provided in this paragraph shall also
extend to any duty, tax, or other similar charges which
would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines.
Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties
shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.
"2. Reasonable quantities of personal baggage,
personal effects, and other property for the personal
use of United States personnel may be imported into
and used in the Philippines free of all duties, taxes and
other similar charges during the period of their
temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the
appropriate Philippine authorities including payment by
the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The
exportation of such property and of property acquired in
the Philippines by United States personnel shall be free
of all Philippine duties, taxes, and other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.
"2. Vessels operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of
vessels shall be in accordance with international
custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or for the
United States armed forces shall not be subject to the
payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light
and harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed forces shall
observe local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United
States solely on United States Government non-
commercial service shall not be subject to compulsory
pilotage at Philippine ports.
"Article IX
Duration and Termination
"This agreement shall enter into force on the date on which the parties
have notified each other in writing through the diplomatic channel that
they have completed their constitutional requirements for entry into
force. This agreement shall remain in force until the expiration of 180
days from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement."
Via these consolidated11 petitions for certiorari and prohibition,
petitioners - as legislators, non-governmental organizations, citizens
and taxpayers - assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in ratifying the
agreement.
We have simplified the issues raised by the petitioners into the
following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or
legislators to question the constitutionality of the VFA?
 II
Is the VFA governed by the provisions of Section 21, Article VII or of
Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and
try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over
offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the
Constitution?
b. the Prohibition against nuclear weapons under Article II,
Section 8?
c. Section 28 (4), Article VI of the Constitution granting the
exemption from taxes and duties for the equipment, materials
supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on
the ground that the latter have not shown any interest in the case, and
that petitioners failed to substantiate that they have sustained, or will
sustain direct injury as a result of the operation of the
VFA.12 Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which
justifies their standing.13
A party bringing a suit challenging the constitutionality of a law, act, or
statute must show "not only that the law is invalid, but also that he has
sustained or in is in immediate, or imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way." He must show that he has
been, or is about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of.14
In the case before us, petitioners failed to show, to the satisfaction of
this Court, that they have sustained, or are in danger of sustaining any
direct injury as a result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves the exercise by
Congress of its taxing or spending powers.15 On this point, it bears
stressing that a taxpayer’s suit refers to a case where the act
complained of directly involves the illegal disbursement of public funds
derived from taxation.16 Thus, in Bugnay Const. & Development
Corp. vs. Laron17 , we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he
would be benefited or injured by the judgment or entitled to the avails
of the suit as a real party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest
in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved in
this case, and in the absence of any allegation by petitioners that
public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker
Arroyo, as petitioners-legislators, do not possess the requisite locus
standi to maintain the present suit. While this Court, in Phil.
Constitution Association vs. Hon. Salvador Enriquez,18 sustained
the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bull, we cannot, at
this instance, similarly uphold petitioners’ standing as members of
Congress, in the absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as
the delegation of the power of Congress to grant tax exemptions, are
more apparent than real. While it may be true that petitioners pointed
to provisions of the VFA which allegedly impair their legislative powers,
petitioners failed however to sufficiently show that they have in fact
suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is
stripped of standing in these cases. As aptly observed by the Solicitor
General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing
its National President to commence the present action.19
Notwithstanding, in view of the paramount importance and the
constitutional significance of the issues raised in the petitions, this
Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases,20 where we had occasion
to rule:
"x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President
Quirino although they were involving only an indirect and general
interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that
‘transcendental importance to the public of these cases demands
that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.’ We have since then applied the
exception in many other cases. (Association of Small Landowners in
the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)."
(Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,21 Daza vs. Singson,22 and Basco vs. Phil. Amusement
and Gaming Corporation,23 where we emphatically held:
"Considering however the importance to the public of the case at bar,
and in keeping with the Court’s duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of
this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona,
Jr.,24 thisCourt ruled that in cases of transcendental importance, the
Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming
the right of judicial review.
Although courts generally avoid having to decide a constitutional
question based on the doctrine of separation of powers, which enjoins
upon the departments of the government a becoming respect for each
others’ acts,25 this Court nevertheless resolves to take cognizance of
the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of
which provision of the Constitution applies, with regard to the exercise
by the senate of its constitutional power to concur with the VFA.
Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops
in the Philippines. Respondents, on the contrary, maintain that Section
21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary
visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements.
Section 21, Article VII, which herein respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be allowed in
the Philippines except under a treaty duly concurred in by the senate
and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State."
Section 21, Article VII deals with treatise or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of
all the Members of the Senate is required to make the subject treaty, or
international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax
treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies
to treaties which involve the presence of foreign military bases, troops
or facilities in the Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on
the Philippines. Section 25, Article XVIII further requires that "foreign
military bases, troops, or facilities" may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a
majority of the votes cast in a national referendum held for that
purpose if so required by Congress, and recognized as such by the
other contracting state.
It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground. These
constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular,
Section 21 opens with the clause "No treaty x x x," and Section 25
contains the phrase "shall not be allowed." Additionally, in both
instances, the concurrence of the Senate is indispensable to render the
treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate
under Section 21, Article VII, and that the Senate extended its
concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII,
the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines. It provides
for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should
apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate,
as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special
provision or law prevails over a general one. Lex specialis derogat
generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be
taken to affect only such cases within its general language which are
not within the provision of the particular enactment.26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction mandates
that general legislation must give way to a special legislation on the
same subject, and generally be so interpreted as to embrace only
cases in which the special provisions are not applicable (Sto. Domingo
vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over
a general statute (De Jesus vs. People, 120 SCRA 760) and that
where two statutes are of equal theoretical application to a particular
case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there is
no permanent placing of structure for the establishment of a military
base. On this score, the Constitution makes no distinction between
"transient’ and "permanent". Certainly, we find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made
by law, the Court should not distinguish- Ubi lex non distinguit nec
nos distinguire debemos.
This formulation speaks of three things: foreign military bases, troops
or facilities. My first question is: If the country does enter into such
kind of a treaty, must it cover the three-bases, troops or facilities-
or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers
only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can
enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can
enter into a treaty covering only troops.

In like manner, we do not subscribe to the argument that Section 25, FR. BERNAS. Why not? Probably if we stretch our imagination a little
Article XVIII is not controlling since no foreign military bases, but bit more, we will find some. We just want to cover
merely foreign troops and facilities, are involved in the VFA. Notably, a everything."29 (Underscoring Supplied)
perusal of said constitutional provision reveals that the proscription
covers "foreign military bases, troops, or facilities." Stated differently,
Moreover, military bases established within the territory of another
this prohibition is not limited to the entry of troops and facilities without
state is no longer viable because of the alternatives offered by new
any foreign bases being established. The clause does not refer to
means and weapons of warfare such as nuclear weapons, guided
"foreign military bases, troops, or facilities" collectively but treats them
missiles as well as huge sea vessels that can stay afloat in the sea
as separate and independent subjects. The use of comma and the
even for months and years without returning to their home country.
disjunctive word "or" clearly signifies disassociation and independence
These military warships are actually used as substitutes for a land-
of one thing from the others included in the enumeration,28 such that,
home base not only of military aircraft but also of military personnel
the provision contemplates three different situations - a military treaty
and facilities. Besides, vessels are mobile as compared to a land-
the subject of which could be either (a) foreign bases, (b) foreign
based military headquarters.
troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave
To this end, the intention of the framers of the Charter, as manifested
its concurrence to the VFA.
during the deliberations of the 1986 Constitutional Commission, is
consistent with this interpretation:
Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are sufficiently
"MR. MAAMBONG. I just want to address a question or two to
met, viz: (a) it must be under a treaty; (b) the treaty must be duly
Commissioner Bernas.
concurred in by the Senate and, when so required by congress,
ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting
state.
There is no dispute as to the presence of the first two requisites in the
case of the VFA. The concurrence handed by the Senate through
Resolution No. 18 is in accordance with the provisions of the
Constitution, whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section 25, Article
XVIII, the provision in the latter article requiring ratification by a majority
of the votes cast in a national referendum being unnecessary since
Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires
that a treaty or international agreement, to be valid and effective, must
be concurred in by at least two-thirds of all the members of the
Senate. On the other hand, Section 25, Article XVIII simply provides
that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all
the members of the Senate is clearly required so that the concurrence
contemplated by law may be validly obtained and deemed present.
While it is true that Section 25, Article XVIII requires, among other
things, that the treaty-the VFA, in the instant case-be "duly concurred
in by the Senate," it is very true however that said provision must be
related and viewed in light of the clear mandate embodied in Section
21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -
thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article
XVIII must be construed in relation to the provisions of Section 21,
Article VII. In a more particular language, the concurrence of the
Senate contemplated under Section 25, Article XVIII means that at
least two-thirds of all the members of the Senate favorably vote to
concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall
be composed of twenty-four (24) Senators.30 Without a tinge of doubt,
two-thirds (2/3) of this figure, or not less than sixteen (16) members,
favorably acting on the proposal is an unquestionable compliance with
the requisite number of votes mentioned in Section 21 of Article VII.
The fact that there were actually twenty-three (23) incumbent Senators
at the time the voting was made,31 will not alter in any significant way
the circumstance that more than two-thirds of the members of the
Senate concurred with the proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators,
or at least 16 favorable votes, suffice so as to render compliance with
the strict constitutional mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites prescribed in Section 25,
Article XVIII are present, we shall now pass upon and delve on the
requirement that the VFA should be recognized as a treaty by the
United States of America.
Petitioners content that the phrase "recognized as a treaty," embodied
in section 25, Article XVIII, means that the VFA should have the advice
and consent of the United States Senate pursuant to its own
constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States
Ambassador Hubbard stating that the VFA is binding on the United
States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be accepted as a treaty
by the United States.
This Court is of the firm view that the phrase "recognized as a
treaty" means that the other contracting party accepts or
acknowledges the agreement as a treaty.32 To require the other
contracting state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence pursuant to its
Constitution,33 is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution
are to be given their ordinary meaning except where technical terms
are employed, in which case the significance thus attached to them
prevails. Its language should be understood in the sense they have in
common use.34
Moreover, it is inconsequential whether the United States treats the
VFA only as an executive agreement because, under international law,
an executive agreement is as binding as a treaty.35 To be sure, as long
as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties,
is "an international instrument concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments, and whatever its
particular designation."36 There are many other terms used for a treaty
or international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have pointed out that
the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms
are useful, but they furnish little more than mere description.37
Article 2(2) of the Vienna Convention provides that "the provisions of
paragraph 1 regarding the use of terms in the present Convention are
without prejudice to the use of those terms, or to the meanings which
may be given to them in the internal law of the State."
Thus, in international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned, as
long as the negotiating functionaries have remained within their
powers.38 International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations
upon nations.39
In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or Congress.
In Commissioner of Customs vs. Eastern Sea Trading,40 we had
occasion to pronounce:
"x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest days of
our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation
rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly
recognized the validity and constitutionality of executive agreements
entered into without Senate approval. (39 Columbia Law Review, pp.
753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299
U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188
F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised
Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International
Law Digest, Vol. V, pp. 210-218; Hackworth, International Law
Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the
1987 Constitution is enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as
ratification of the other state is concerned, that is entirely their concern
under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say
that we have done everything to make it a treaty, then as far as we are
concerned, we will accept it as a treaty."41
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the
VFA.42 For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply
with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA
and the concurrence of the Senate should be taken as a clear an
unequivocal expression of our nation’s consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the
head of the state or of the government, as the case may be, through
which the formal acceptance of the treaty is proclaimed.43 A State may
provide in its domestic legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State
to sign the treaty subject to ratification appears from the full powers of
its representative, or was expressed during the negotiation.44
In our jurisdiction, the power to ratify is vested in the President and not,
as commonly believed, in the legislature. The role of the Senate is
limited only to giving or withholding its consent, or concurrence, to the
ratification.45
With the ratification of the VFA, which is equivalent to final acceptance,
and with the exchange of notes between the Philippines and the United
States of America, it now becomes obligatory and incumbent on our
part, under the principles of international law, to be bound by the terms
of the agreement. Thus, no less than Section 2, Article II of the
Constitution,46 declares that the Philippines adopts the generally
accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be
bound by generally accepted rules for the conduct of its international
relations. While the international obligation devolves upon the state
and not upon any particular branch, institution, or individual member of
its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or
any official thereof. As an integral part of the community of nations, we
are responsible to assure that our government, Constitution and laws
will carry out our international obligation.47 Hence, we cannot readily
plead the Constitution as a convenient excuse for non-compliance with
our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of
States adopted by the International Law Commission in 1949
provides: "Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law,
and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty."48
Equally important is Article 26 of the convention which provides that
"Every treaty in force is binding upon the parties to it and must be
performed by them in good faith." This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international
tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for
exercising a power and performing a task conferred upon him by the
Constitution-the power to enter into and ratify treaties. Through the
expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of
the chief Executive in ratifying the VFA, and referring the same to the
Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must
be so patent and gross as to amount to an evasion of positive duty
enjoined or to act at all in contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office, the
President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the chief
architect of the nation’s foreign policy; his "dominance in the field of
foreign relations is (then) conceded."51 Wielding vast powers an
influence, his conduct in the external affairs of the nation, as Jefferson
describes, is "executive altogether."52
As regards the power to enter into treaties or international agreements,
the Constitution vests the same in the President, subject only to the
concurrence of at least two-thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to
the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law
itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.53 Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts
of ratification and entering into a treaty and those necessary or
incidental to the exercise of such principal acts - squarely fall within the
sphere of his constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the VFA
and in submitting the same to the Senate for concurrence, acted within
the confines and limits of the powers vested in him by the Constitution.
It is of no moment that the President, in the exercise of his wide
latitude of discretion and in the honest belief that the VFA falls within
the ambit of Section 21, Article VII of the Constitution, referred the VFA
to the Senate for concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave, patent and
whimsical abuse of judgment, may be imputed to the President in his
act of ratifying the VFA and referring the same to the Senate for the
purpose of complying with the concurrence requirement embodied in
the fundamental law. In doing so, the President merely performed a
constitutional task and exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section 21 of Article
VII, instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged guilty
of committing an abuse of discretion in some patent, gross, and
capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution
has broadened the scope of judicial inquiry into areas normally left to
the political departments to decide, such as those relating to national
security, it has not altogether done away with political questions such
as those which arise in the field of foreign relations.54 The High
Tribunal’s function, as sanctioned by Article VIII, Section 1, "is merely
(to) check whether or not the governmental branch or agency has gone
beyond the constitutional limits of its jurisdiction, not that it erred or has
a different view. In the absence of a showing… (of) grave abuse of
discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective power…It has no power to look into
what it thinks is apparent error."55
As to the power to concur with treaties, the constitution lodges the
same with the Senate alone. Thus, once the Senate56 performs that
1âw phi 1
power, or exercises its prerogative within the boundaries prescribed by
the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof.
Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to treaties is essentially legislative
in character;57 the Senate, as an independent body possessed of its
own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its
wide latitude of discretion, pertains to the wisdom rather than the
legality of the act. In this sense, the Senate partakes a principal, yet
delicate, role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic
government such as ours. The Constitution thus animates, through this
treaty-concurring power of the Senate, a healthy system of checks and
balances indispensable toward our nation’s pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and
province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the
part of respondents, this Court- as the final arbiter of legal
controversies and staunch sentinel of the rights of the people - is then
without power to conduct an incursion and meddle with such affairs
purely executive and legislative in character and nature. For the
Constitution no less, maps out the distinct boundaries and limits the
metes and bounds within which each of the three political branches of
government may exercise the powers exclusively and essentially
conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant

petitions are hereby DISMISSED.

SO ORDERED.
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN,
PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY
L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL
PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE
GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED
FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED
BY ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN
MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES
AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE
JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE
ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE
FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE
TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN
(MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND
LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN,
RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA,
AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO
MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY
FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY
FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON
EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON,
ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS
NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA,
VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO
TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the
Enhanced Defense Cooperation Agreement (EDCA) between the
Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they
entered into EDCA with the U.S.,2 claiming that the instrument violated
multiple constitutional provisions.3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the legality of
their actions, respondents invoke the 1987 Constitution, treaties, and
judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the
outset the basic parameters of the constitutional powers and roles of
the President and the Senate in respect of the above issues. A more
detailed discussion of these powers and roles will be made in the latter
portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive
Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko
nang buong katapatan at sigasig ang aking mga tungkulin bilang
Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon,
ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao,
at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa
aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas
ayon sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the
President of the Republic of the Philippines."6 While the vastness of the
executive power that has been consolidated in the person of the
President cannot be expressed fully in one provision, the Constitution
has stated the prime duty of the government, of which the President is
the head:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil
service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the
Philippines, the power to call upon the people to defend the State,
and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out
earnestly and effectively throughout the whole territory of the
Philippines in accordance with the constitutional provision on national
territory. Hence, the President of the Philippines, as the sole repository
of executive power, is the guardian of the Philippine archipelago,
including all the islands and waters embraced therein and all other
territories over which it has sovereignty or jurisdiction. These territories
consist of its terrestrial, fluvial, and aerial domains; including its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas; and the waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions.8
To carry out this important duty, the President is equipped with
authority over the Armed Forces of the Philippines (AFP),9 which is the
protector of the people and the state. The AFP's role is to secure the
sovereignty of the State and the integrity of the national territory.10 In
addition, the Executive is constitutionally empowered to maintain
peace and order; protect life, liberty, and property; and promote the
general welfare.11
In recognition of these powers, Congress has specified that the
President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats12 and, in the same
vein, ensure that the country is adequately prepared for all national and
local emergencies arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate,
the President may call out the AFP to prevent or suppress instances of
lawless violence, invasion or rebellion,14 but not suspend the privilege
of the writ of habeas corpus for a period exceeding 60 days, or place
the Philippines or any part thereof under martial law exceeding that
same span. In the exercise of these powers, the President is also duty-
bound to submit a report to Congress, in person or in writing, within 48
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus; and Congress may in turn
revoke the proclamation or suspension. The same provision provides
for the Supreme Court's review of the factual basis for the proclamation
or suspension, as well as the promulgation of the decision within 30
days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the
conduct of foreign relations.15 Since every state has the capacity to
interact with and engage in relations with other sovereign states,16 it is
but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available
information and can decide with decisiveness. x x x It is also the
President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity
of his actions are adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international obligation, rupture
of state relations, forfeiture of confidence, national embarrassment and
a plethora of other problems with equally undesirable consequences.17
The role of the President in foreign affairs is qualified by the
Constitution in that the Chief Executive must give paramount
importance to the sovereignty of the nation, the integrity of its territory,
its interest, and the right of the sovereign Filipino people to self-
determination.18 In specific provisions, the President's power is also
limited, or at least shared, as in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on
the judicial review of executive acts; Sections 4 and 25 of Article XVIII
on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or
facilities.
D. The relationship between the two major presidential functions
and the role of the Senate
Clearly, the power to defend the State and to act as its representative
in the international sphere inheres in the person of the President. This
power, however, does not crystallize into absolute discretion to craft
whatever instrument the Chief Executive so desires. As previously
mentioned, the Senate has a role in ensuring that treaties or
international agreements the President enters into, as contemplated in
Section 21 of Article VII of the Constitution, obtain the approval of two-
thirds of its members.
Previously, treaties under the 1973 Constitution required ratification by
a majority of the Batasang Pambansa,19except in instances wherein the
President "may enter into international treaties or agreements as the
national welfare and interest may require."20 This left a large margin of
discretion that the President could use to bypass the Legislature
altogether. This was a departure from the 1935 Constitution, which
explicitly gave the President the power to enter into treaties only with
the concurrence of two-thirds of all the Members of the Senate.21 The
1987 Constitution returned the Senate's power22 and, with it, the
legislative's traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and
international agreements under the present Constitution is therefore
shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases,
and the transition to Philippine independence
The presence of the U.S. military forces in the country can be traced to
their pivotal victory in the 1898 Battle of Manila Bay during the
Spanish-American War.24 Spain relinquished its sovereignty over the
Philippine Islands in favor of the U.S. upon its formal surrender a few
months later.25 By 1899, the Americans had consolidated a military
administration in the archipelago.26
When it became clear that the American forces intended to impose
colonial control over the Philippine Islands, General Emilio Aguinaldo
immediately led the Filipinos into an all-out war against the U.S.27 The
Filipinos were ultimately defeated in the Philippine-American War,
which lasted until 1902 and led to the downfall of the first Philippine
Republic.28 The Americans henceforth began to strengthen their
foothold in the country.29 They took over and expanded the former
Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands
gained ground, the U.S. manifested the desire to maintain military
bases and armed forces in the country.31 The U.S. Congress later
enacted the Hare-Hawes-Cutting Act of 1933, which required that the
proposed constitution of an independent Philippines recognize the right
of the U.S. to maintain the latter's armed forces and military
bases.32 The Philippine Legislature rejected that law, as it also gave the
U.S. the power to unilaterally designate any part of Philippine territory
as a permanent military or naval base of the U.S. within two years from
complete independence.33
The U.S. Legislature subsequently crafted another law called the
Tydings-McDuffie Act or the Philippine Independence Act of 1934.
Compared to the old Hare-Hawes-Cutting Act, the new law provided for
the surrender to the Commonwealth Government of "all military and
other reservations" of the U.S. government in the Philippines, except
"naval reservations and refueling stations."34 Furthermore, the law
authorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval
reservations and fueling stations within two years after the Philippines
would have gained independence.35 Under the Tydings-McDuffie Act,
the U.S. President would proclaim the American withdrawal and
surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines.36 This law
eventually led to the promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At the
height of the Second World War, the Philippine and the U.S.
Legislatures each passed resolutions authorizing their respective
Presidents to negotiate the matter of retaining military bases in the
country after the planned withdrawal of the U.S.38 Subsequently, in
1946, the countries entered into the Treaty of General Relations, in
which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the
American military bases in the country.39 This treaty eventually led to
the creation of the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the Military
Bases Agreement (MBA) of 1947, the Military Assistance Agreement of
1947, and the Mutual Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in
the territory of an independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two
countries entered into their first military arrangement pursuant to the
Treaty of General Relations - the 1947 MBA.41 The Senate concurred
on the premise of "mutuality of security interest,"42 which provided for
the presence and operation of 23 U.S. military bases in the Philippines
for 99 years or until the year 2046.43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the
existing bases or to acquire new ones as military necessity might
require.44
A number of significant amendments to the 1947 MBA were
made.45 With respect to its duration, the parties entered into the
Ramos-Rusk Agreement of 1966, which reduced the term of the treaty
from 99 years to a total of 44 years or until 1991.46 Concerning the
number of U.S. military bases in the country, the Bohlen-Serrano
Memorandum of Agreement provided for the return to the Philippines
of 17 U.S. military bases covering a total area of 117,075
hectares.47 Twelve years later, the U.S. returned Sangley Point in
Cavite City through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the
recognition of Philippine sovereignty over Clark and Subic Bases and
the reduction of the areas that could be used by the U.S. military.49 The
agreement also provided for the mandatory review of the treaty every
five years.50 In 1983, the parties revised the 1947 MBA through the
Romualdez-Armacost Agreement.51 The revision pertained to the
operational use of the military bases by the U.S. government within the
context of Philippine sovereignty,52 including the need for prior
consultation with the Philippine government on the former' s use of the
bases for military combat operations or the establishment of long-range
missiles.53
Pursuant to the legislative authorization granted under Republic Act
No. 9,54 the President also entered into the 1947 Military Assistance
Agreement55 with the U.S. This executive agreement established the
conditions under which U.S. military assistance would be granted to
the Philippines,56 particularly the provision of military arms,
ammunitions, supplies, equipment, vessels, services, and training for
the latter's defense forces.57 An exchange of notes in 1953 made it
clear that the agreement would remain in force until terminated by any
of the parties.58
To further strengthen their defense and security relationship,59 the
Philippines and the U.S. next entered into the MDT in 1951. Concurred
in by both the Philippine60 and the U.S.61 Senates, the treaty has two
main features: first, it allowed for mutual assistance in maintaining and
developing their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense in the
event of an armed attack against the territory of either party.63 The
treaty was premised on their recognition that an armed attack on either
of them would equally be a threat to the security of the other.64
C. Current legal regime on the presence of U.S. armed forces in
the country
In view of the impending expiration of the 1947 MBA in 1991, the
Philippines and the U.S. negotiated for a possible renewal of their
defense and security relationship.65 Termed as the Treaty of
Friendship, Cooperation and Security, the countries sought to recast
their military ties by providing a new framework for their defense
cooperation and the use of Philippine installations.66 One of the
proposed provisions included an arrangement in which U.S. forces
would be granted the use of certain installations within the Philippine
naval base in Subic.67 On 16 September 1991, the Senate rejected the
proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity
of any formal agreement dealing with the treatment of U.S. personnel
in the Philippines led to the suspension in 1995 of large-scale joint
military exercises.69In the meantime, the respective governments of the
two countries agreed70 to hold joint exercises at a substantially reduced
level.71 The military arrangements between them were revived in 1999
when they concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has
laid down the regulatory mechanism for the treatment of U.S. military
and civilian personnel visiting the country.74 It contains provisions on
the entry and departure of U.S. personnel; the purpose, extent, and
limitations of their activities; criminal and disciplinary jurisdiction; the
waiver of certain claims; the importation and exportation of equipment,
materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and
aircraft into and within the country.75 The Philippines and the U.S. also
entered into a second counterpart agreement (VFA II), which in turn
regulated the treatment of Philippine military and civilian personnel
visiting the U.S.76 The Philippine Senate concurred in the first VFA on
27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started
arriving in Mindanao to take part in joint military exercises with their
Filipino counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant to the
MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual
Logistics Support Agreement to "further the interoperability, readiness,
and effectiveness of their respective military forces"80 in accordance
with the MDT, the Military Assistance Agreement of 1953, and the
VFA.81 The new agreement outlined the basic terms, conditions, and
procedures for facilitating the reciprocal provision of logistics support,
supplies, and services between the military forces of the two
countries.82 The phrase "logistics support and services" includes
billeting, operations support, construction and use of temporary
structures, and storage services during an approved activity under the
existing military arrangements.83 Already extended twice, the
agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and
conduct activities within certain "Agreed Locations" in the country. It
was not transmitted to the Senate on the executive's understanding
that to do so was no longer necessary.85 Accordingly, in June 2014, the
Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two
countries.86
According to the Philippine government, the conclusion of EDCA was
the result of intensive and comprehensive negotiations in the course of
almost two years.87 After eight rounds of negotiations, the Secretary of
National Defense and the U.S. Ambassador to the Philippines signed
the agreement on 28 April 2014.88 President Benigno S. Aquino III
ratified EDCA on 6 June 2014.89 The OSG clarified during the oral
arguments90 that the Philippine and the U.S. governments had yet to
agree formally on the specific sites of the Agreed Locations mentioned
in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have
been in the form of a treaty concurred in by the Senate, not an
executive agreement.
On 10 November 2015, months after the oral arguments were
concluded and the parties ordered to file their respective memoranda,
the Senators adopted Senate Resolution No. (SR) 105.91 The resolution
expresses the "strong sense"92 of the Senators that for EDCA to
become valid and effective, it must first be transmitted to the Senate for
deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department
committed grave abuse of discretion in entering into EDCA in the form
of an executive agreement. For this reason, we cull the issues before
us:
A. Whether the essential requisites for judicial review are
present
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with
the Constitution, as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been
satisfied
Petitioners are hailing this Court's power of judicial review in order to
strike down EDCA for violating the Constitution. They stress that our
fundamental law is explicit in prohibiting the presence of foreign military
forces in the country, except under a treaty concurred in by the Senate.
Before this Court may begin to analyze the constitutionality or validity
of an official act of a coequal branch of government, however,
petitioners must show that they have satisfied all the essential
requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of
judicial review specially refers to both the authority and the duty of this
Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional
powers.94 As articulated in Section 1, Article VIII of the Constitution, the
power of judicial review involves the power to resolve cases in which
the questions concern the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation.95 In Angara v.
Electoral Commission, this Court exhaustively discussed this
"moderating power" as part of the system of checks and balances
under the Constitution. In our fundamental law, the role of the Court is
to determine whether a branch of government has adhered to the
specific restrictions and limitations of the latter's power:96
The separation of powers is a fundamental principle in our system of
government. It 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. But it does not follow from the fact
that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in
the workings of the various departments of the government. x x x. And
the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise of
its power to determine the law, and hence to declare executive
and legislative acts void if violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets
forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then
the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in
any living constitution. x x x. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article
VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which properly
is the power of judicial review under the Constitution. x x x x.
(Emphases supplied)
The power of judicial review has since been strengthened in the 1987
Constitution. The scope of that power has been extended to the
determination of whether in matters traditionally considered to be within
the sphere of appreciation of another branch of government, an
exercise of discretion has been attended with grave abuse.97 The
expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or
the impenetrable shield that protects executive and legislative actions
from judicial inquiry or review."98
This moderating power, however, must be exercised carefully and only
if it cannot be completely avoided. We stress that our Constitution is so
incisively designed that it identifies the spheres of expertise within
which the different branches of government shall function and the
questions of policy that they shall resolve.99 Since the power of judicial
review involves the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of government, this Court
must continually exercise restraint to avoid the risk of supplanting the
wisdom of the constitutionally appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to check an
act of a coequal branch of government - in this case the executive - we
must abide by the stringent requirements for the exercise of that power
under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of
judicial review as enunciated in the concurring opinion of U.S.
Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following
categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as
required by the facts of the case
3. That judgment may not be sustained on some other
ground
4. That there be actual injury sustained by the party by
reason of the operation of the statute
 5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it
exercises its power of judicial review.105 Guided by these pillars, it may
invoke the power only when the following four stringent requirements
are satisfied: (a) there is an actual case or controversy; (b) petitioners
possess locus standi; (c) the question of constitutionality is raised at
the earliest opportunity; and (d) the issue of constitutionality is the lis
mota of the case.106 Of these four, the first two conditions will be the
focus of our discussion.
1. Petitioners have shown the presence of an actual case or
controversy.
The OSG maintains107 that there is no actual case or controversy that
exists, since the Senators have not been deprived of the opportunity to
invoke the privileges of the institution they are representing. It contends
that the nonparticipation of the Senators in the present petitions only
confirms that even they believe that EDCA is a binding executive
agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed its
position through SR 105.108 Through the Resolution, the Senate has
taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that EDCA
infringes upon its constitutional role indicates that an actual
controversy - albeit brought to the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators
from the present proceedings as basis for finding that there is no actual
case or controversy before us. We point out that the focus of this
requirement is the ripeness for adjudication of the matter at hand, as
opposed to its being merely conjectural or anticipatory.109 The case
must involve a definite and concrete issue involving real parties with
conflicting legal rights and legal claims admitting of specific relief
through a decree conclusive in nature.110 It should not equate with a
mere request for an opinion or advice on what the law would be upon
an abstract, hypothetical, or contingent state of facts.111 As explained
in Angara v. Electoral Commission:112
[The] power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument
by the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More
than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of
the government. (Emphases supplied)
We find that the matter before us involves an actual case or
controversy that is already ripe for adjudication. The Executive
Department has already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the Philippines x x x have
already been complied with."113 By this exchange of diplomatic notes,
the Executive Department effectively performed the last act required
under Article XII(l) of EDCA before the agreement entered into force.
Section 25, Article XVIII of the Constitution, is clear that the presence
of foreign military forces in the country shall only be allowed by virtue
of a treaty concurred in by the Senate. Hence, the performance of an
official act by the Executive Department that led to the entry into force
of an executive agreement was sufficient to satisfy the actual case or
controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing,
they nonetheless raise issues involving matters of transcendental
importance.
The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act have
the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and
substantial interest in the case, such that they have sustained or are in
immediate danger of sustaining, some direct injury as a consequence
of the enforcement of the challenged governmental act.115 Here,
"interest" in the question involved must be material - an interest that is
in issue and will be affected by the official act - as distinguished from
being merely incidental or general.116 Clearly, it would be insufficient to
show that the law or any governmental act is invalid, and that
petitioners stand to suffer in some indefinite way.117 They must show
that they have a particular interest in bringing the suit, and that they
have been or are about to be denied some right or privilege to which
they are lawfully entitled, or that they are about to be subjected to
some burden or penalty by reason of the act complained of.118 The
reason why those who challenge the validity of a law or an international
agreement are required to allege the existence of a personal stake in
the outcome of the controversy is "to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or
legislators' suits; the Senate as a body has the requisite standing, but
considering that it has not formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its sense that EDCA needs the
Senate's concurrence to be valid, petitioners continue to suffer from
lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing
as citizens may dodge the requirement of having to establish a direct
and personal interest if they show that the act affects a public right.120 In
arguing that they have legal standing, they claim121 that the case they
have filed is a concerned citizen's suit. But aside from general
statements that the petitions involve the protection of a public right, and
that their constitutional rights as citizens would be violated, they fail to
make any specific assertion of a particular public right that would be
violated by the enforcement of EDCA. For their failure to do so, the
present petitions cannot be considered by the Court as citizens'
suits that would justify a disregard of the aforementioned
requirements.
In claiming that they have legal standing as taxpayers,
petitioners122 aver that the implementation of EDCA would result in the
unlawful use of public funds. They emphasize that Article X(1) refers to
an appropriation of funds; and that the agreement entails a waiver of
the payment of taxes, fees, and rentals. During the oral arguments,
however, they admitted that the government had not yet appropriated
or actually disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that petitioners
cannot sue as taxpayers.124Respondent explains that EDCA is neither
meant to be a tax measure, nor is it directed at the disbursement of
public funds.
A taxpayer's suit concerns a case in which the official act complained
of directly involves the illegal disbursement of public funds derived from
taxation.125 Here, those challenging the act must specifically show that
they have sufficient interest in preventing the illegal expenditure of
public money, and that they will sustain a direct injury as a result of the
enforcement of the assailed act.126 Applying that principle to this case,
they must establish that EDCA involves the exercise by Congress of its
taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers'
suits. We emphasize that a taxpayers' suit contemplates a situation in
which there is already an appropriation or a disbursement of public
funds.128 A reading of Article X(l) of EDCA would show that there has
been neither an appropriation nor an authorization of disbursement of
funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of
appropriated funds authorized for these purposes. (Emphases
supplied)
This provision means that if the implementation of EDCA would require
the disbursement of public funds, the money must come
from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a
disbursement of public funds, there must first be a legislative
action. Until and unless the Legislature appropriates funds for
EDCA, or unless petitioners can pinpoint a specific item in the
current budget that allows expenditure under the agreement, we
cannot at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a taxpayers'
suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are
party-list representatives have the standing to challenge the act of the
Executive Department, especially if it impairs the constitutional
prerogatives, powers, and privileges of their office. While they admit
that there is no incumbent Senator who has taken part in the present
petition, they nonetheless assert that they also stand to sustain a
derivative but substantial injury as legislators. They argue that under
the Constitution, legislative power is vested in both the Senate and the
House of Representatives; consequently, it is the entire Legislative
Department that has a voice in determining whether or not the
presence of foreign military should be allowed. They maintain that as
members of the Legislature, they have the requisite personality to bring
a suit, especially when a constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal standing to
file the suits concerning the lack of Senate concurrence in EDCA.
Respondent emphasizes that the power to concur in treaties and
international agreements is an "institutional prerogative" granted by the
Constitution to the Senate. Accordingly, the OSG argues that in case of
an allegation of impairment of that power, the injured party would be
the Senate as an institution or any of its incumbent members, as it is
the Senate's constitutional function that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its
Members has already been recognized by this Court in a number of
cases.131 What is in question here is the alleged impairment of the
constitutional duties and powers granted to, or the impermissible
intrusion upon the domain of, the Legislature or an institution
thereof.132 In the case of suits initiated by the legislators themselves,
this Court has recognized their standing to question the validity of any
official action that they claim infringes the prerogatives, powers, and
privileges vested by the Constitution in their office.133 As aptly explained
by Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that
the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to
commit a flagrant betrayal of public trust. They are representatives of
the sovereign people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people is
not trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress
who are challenging the official act have standing only to the extent
that the alleged violation impinges on their right to participate in the
exercise of the powers of the institution of which they are
members.135 Legislators have the standing "to maintain inviolate the
prerogatives, powers, and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official
action, which they claim infringes their prerogatives as legislators."136 As
legislators, they must clearly show that there was a direct injury to their
persons or the institution to which they belong.137
As correctly argued by respondent, the power to concur in a treaty or
an international agreement is an institutional prerogative granted by the
Constitution to the Senate, not to the entire Legislature. In Pimentel v.
Office of the Executive Secretary, this Court did not recognize the
standing of one of the petitioners therein who was a member of the
House of Representatives. The petition in that case sought to compel
the transmission to the Senate for concurrence of the signed text of the
Statute of the International Criminal Court. Since that petition invoked
the power of the Senate to grant or withhold its concurrence in a treaty
entered into by the Executive Department, only then incumbent
Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.
Therefore, none of the initial petitioners in the present controversy
has the standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act
of the Executive for the following reasons.
In any case, petitioners raise issues involving matters of
transcendental importance.
Petitioners138 argue that the Court may set aside procedural
technicalities, as the present petition tackles issues that are of
transcendental importance. They point out that the matter before us is
about the proper exercise of the Executive Department's power to
enter into international agreements in relation to that of the Senate to
concur in those agreements. They also assert that EDCA would cause
grave injustice, as well as irreparable violation of the Constitution and
of the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the
mere fact that the present petitions involve matters of transcendental
importance in order to cure their inability to comply with the
constitutional requirement of standing. Respondent bewails the
overuse of "transcendental importance" as an exception to the
traditional requirements of constitutional litigation. It stresses that one
of the purposes of these requirements is to protect the Supreme Court
from unnecessary litigation of constitutional questions.
U.S. Embassy that "all internal requirements of the Philippines x x x
have already been complied with."142 It behooves the Court in this
instance to take a liberal stance towards the rule on standing and to
determine forthwith whether there was grave abuse of discretion on the
part of the Executive Department.
We therefore rule that this case is a proper subject for
judicial review.
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities

In a number of cases,140 this Court has indeed taken a liberal stance C. Whether the provisions under EDCA are consistent with
towards the requirement of legal standing, especially when paramount the Constitution, as well as with existing laws and treaties
interest is involved. Indeed, when those who challenge the official act
are able to craft an issue of transcendental significance to the people, Issues B and C shall be discussed together infra.
the Court may exercise its sound discretion and take cognizance of the
suit. It may do so in spite of the inability of the petitioners to show that
1. The role of the President as the executor of the law includes the
they have been personally injured by the operation of a law or any
duty to defend the State, for which purpose he may use that
other government act.
power in the conduct of foreign relations
While this Court has yet to thoroughly delineate the outer limits of this
Historically, the Philippines has mirrored the division of powers in the
doctrine, we emphasize that not every other case, however strong
U.S. government. When the Philippine government was still an agency
public interest may be, can qualify as an issue of transcendental
of the Congress of the U.S., it was as an agent entrusted with powers
importance. Before it can be impelled to brush aside the essential
categorized as executive, legislative, and judicial, and divided among
requisites for exercising its power of judicial review, it must at the very
these three great branches.143 By this division, the law implied that the
least consider a number of factors: (1) the character of the funds or
divided powers cannot be exercised except by the department given
other assets involved in the case; (2) the presence of a clear case of
the power.144
disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the
lack of any other party that has a more direct and specific interest in This divide continued throughout the different versions of the Philippine
raising the present questions.141 Constitution and specifically vested the supreme executive power in
the Governor-General of the Philippines,145 a position inherited by the
President of the Philippines when the country attained independence.
An exhaustive evaluation of the memoranda of the parties, together
One of the principal functions of the supreme executive is the
with the oral arguments, shows that petitioners have presented serious
responsibility for the faithful execution of the laws as embodied by the
constitutional issues that provide ample justification for the Court to set
oath of office.146 The oath of the President prescribed by the 1987
aside the rule on standing. The transcendental importance of the
Constitution reads thus:
issues presented here is rooted in the Constitution itself. Section 25,
Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases I do solemnly swear (or affirm) that I will faithfully and
may be allowed in the country. The DFA has already confirmed to the conscientiously fulfill my duties as President (or Vice-President or
Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God. (In
case of affirmation, last sentence will be omitted.)147 (Emphases
supplied)
This Court has interpreted the faithful execution clause as an obligation
imposed on the President, and not a separate grant of power.148 Section
1 7, Article VII of the Constitution, expresses this duty in no uncertain
terms and includes it in the provision regarding the President's power
of control over the executive department, viz:
The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.
The equivalent provisions in the next preceding Constitution did not
explicitly require this oath from the President. In the 1973 Constitution,
for instance, the provision simply gives the President control over the
ministries.149 A similar language, not in the form of the President's oath,
was present in the 1935 Constitution, particularly in the enumeration of
executive functions.150 By 1987, executive power was codified not only
in the Constitution, but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all
the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive
functions. These functions include the faithful execution of the law in
autonomous regions;152 the right to prosecute crimes;153 the
implementation of transportation projects;154 the duty to ensure
compliance with treaties, executive agreements and executive
orders;155 the authority to deport undesirable aliens;156 the conferment of
national awards under the President's jurisdiction;157 and the overall
administration and control of the executive department.158
These obligations are as broad as they sound, for a President cannot
function with crippled hands, but must be capable of securing the rule
of law within all territories of the Philippine Islands and be empowered
to do so within constitutional limits. Congress cannot, for instance, limit
or take over the President's power to adopt implementing rules and
regulations for a law it has enacted.159
More important, this mandate is self-executory by virtue of its being
inherently executive in nature.160 As Justice Antonio T. Carpio
previously wrote,161
[i]f the rules are issued by the President in implementation or execution
of self-executory constitutional powers vested in the President, the
rule-making power of the President is not a delegated legislative
power. The most important self-executory constitutional power of the
President is the President's constitutional duty and mandate to "ensure
that the laws be faithfully executed." The rule is that the President can
execute the law without any delegation of power from the legislature.
The import of this characteristic is that the manner of the
President's execution of the law, even if not expressly granted by
the law, is justified by necessity and limited only by law, since the
President must "take necessary and proper steps to carry into
execution the law."162 Justice George Malcolm states this principle in a
grand manner:163
The executive should be clothed with sufficient power to administer
efficiently the affairs of state. He should have complete control of the
instrumentalities through whom his responsibility is discharged. It is still
true, as said by Hamilton, that "A feeble executive implies a feeble
execution of the government. A feeble execution is but another phrase
for a bad execution; and a government ill executed, whatever it may be
in theory, must be in practice a bad government." The mistakes of
State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The
Congress of the United States clearly intended that the Governor-
General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled
with the responsibility of administering the government and of
executing the laws but shorn of the power to do so. The interests of the
Philippines will be best served by strict adherence to the basic
principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do
whatever is legal and necessary for Philippine defense interests. It is
no coincidence that the constitutional provision on the faithful execution
clause was followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary events of
lawless violence, invasion, or rebellion. And this duty of defending the
country is unceasing, even in times when there is no state of lawlesss
violence, invasion, or rebellion. At such times, the President has full
powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the
faithful-execution clause of the Constitution to do nothing when the call
of the moment requires increasing the military's defensive capabilities,
which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an
offending state.
The context drawn in the analysis above has been termed by Justice
Arturo D. Brion's Dissenting Opinion as the beginning of a "patent
misconception."165 His dissent argues that this approach taken in
analyzing the President's role as executor of the laws is preceded by
the duty to preserve and defend the Constitution, which was allegedly
overlooked.166
In arguing against the approach, however, the dissent grossly failed to
appreciate the nuances of the analysis, if read holistically and in
context. The concept that the President cannot function with crippled
hands and therefore can disregard the need for Senate concurrence in
treaties167 was never expressed or implied. Rather, the appropriate
reading of the preceding analysis shows that the point being elucidated
is the reality that the President's duty to execute the laws and protect
the Philippines is inextricably interwoven with his foreign affairs
powers, such that he must resolve issues imbued with both concerns
to the full extent of his powers, subject only to the limits supplied by
law. In other words, apart from an expressly mandated limit, or an
implied limit by virtue of incompatibility, the manner of execution by the
President must be given utmost deference. This approach is not
different from that taken by the Court in situations with fairly similar
contexts.
Thus, the analysis portrayed by the dissent does not give the President
authority to bypass constitutional safeguards and limits. In fact, it
specifies what these limitations are, how these limitations are triggered,
how these limitations function, and what can be done within the sphere
of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered
when it claims that the foreign relations power of the President should
not be interpreted in isolation.168 The analysis itself demonstrates how
the foreign affairs function, while mostly the President's, is shared in
several instances, namely in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on
the judicial review of executive acts; Sections 4 and 25 of Article XVIII
on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or
facilities.
In fact, the analysis devotes a whole subheading to the relationship
between the two major presidential functions and the role of the Senate
in it.
This approach of giving utmost deference to presidential initiatives in
respect of foreign affairs is not novel to the Court. The President's act
of treating EDCA as an executive agreement is not the principal power
being analyzed as the Dissenting Opinion seems to suggest. Rather,
the preliminary analysis is in reference to the expansive power of
foreign affairs. We have long treated this power as something the
Courts must not unduly restrict. As we stated recently in Vinuya v.
Romulo:
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan
in the Treaty of Peace of 1951. The wisdom of such decision is not for
the courts to question. Neither could petitioners herein assail the said
determination by the Executive Department via the instant petition for
certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US
Supreme Court held that "[t]he President is the sole organ of the nation
in its external relations, and its sole representative with foreign
relations."
It is quite apparent that if, in the maintenance of our
international relations, embarrassment - perhaps
serious embarrassment - is to be avoided and success
for our aims achieved, congressional legislation which
is to be made effective through negotiation and inquiry
within the international field must often accord to the
President a degree of discretion and freedom from
statutory restriction which would not be admissible
where domestic affairs alone involved. Moreover,
he, not Congress, has the better opportunity of knowing
the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his
confidential sources of information. He has his agents
in the form of diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence
through Bavan v. Executive Secretary and Pimentel v. Executive
Secretary; its overreaching principle was, perhaps, best articulated in
(now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of
complexities and consequences, sometimes with life
and death significance to the nation especially in times
of war. It can only be entrusted to that department of
government which can act on the basis of the best
available information and can decide with decisiveness
.... It is also the President who possesses the most
comprehensive and the most confidential information
about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and
the President is traditionally accorded a wider
degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions
are adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an
international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment
and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same
perspective and understanding, knowing full well the constitutional and
legal repercussions of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of
foreign military bases, troops or facilities, except by way of a
treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole
authority in foreign relations.
Despite the President's roles as defender of the State and sole
authority in foreign relations, the 1987 Constitution expressly limits his
ability in instances when it involves the entry of foreign military bases,
troops or facilities. The initial limitation is found in Section 21 of the
provisions on the Executive Department: "No treaty or international
agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate." The specific limitation is
given by Section 25 of the Transitory Provisions, the full text of which
reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the
other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution
intended to add to the basic requirements of a treaty under Section 21
of Article VII. This means that both provisions must be read as
additional limitations to the President's overarching executive function
in matters of defense and foreign relations.
3. The President, however, may enter into an executive agreement
on foreign military bases, troops, or facilities, if (a) it is not the
instrument that allows the presence of foreign military bases,
troops, or facilities; or (b) it merely aims to implement an existing
law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty
by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the
form of a "treaty" duly concurred in by the Senate. They stress that the
Constitution is unambigous in mandating the transmission to the
Senate of all international agreements concluded after the expiration of
the MBA in 1991 - agreements that concern the presence of foreign
military bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive
agreement.
This is also the view of the Senate, which, through a majority vote of 15
of its members - with 1 against and 2 abstaining - says in SR 105171 that
EDCA must be submitted to the Senate in the form of a treaty for
concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21
and Article XVIII, Section 25) to support its position. Compared with the
lone constitutional provision that the Office of the Solicitor General
(OSG) cites, which is Article XVIII, Section 4(2), which includes the
constitutionality of "executive agreement(s)" among the cases subject
to the Supreme Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two specific provisions
versus one general provision means that the specific provisions
prevail. The term "executive agreement" is "a term wandering alone in
the Constitution, bereft of provenance and an unidentified constitutional
mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon
interpellation even added that the MDT, which the Executive claims to
be partly implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with
SR 105, as well as with the comment on interpellation made by
Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in
this Court's pronouncements on the powers of the President. When the
Court validated the concept of "executive agreement," it did so with full
knowledge of the Senate's role in concurring in treaties. It was aware of
the problematique of distinguishing when an international agreement
needed Senate concurrence for validity, and when it did not; and the
Court continued to validate the existence of "executive agreements"
even after the 1987 Constitution.172 This follows a long line of similar
decisions upholding the power of the President to enter into an
executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that
as late as 2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25,
inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government,
whereby military bases, troops, or facilities of such foreign government
would be "allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction.
This wording signifies that the President is not authorized by law to
allow foreign military bases, troops, or facilities to enter the Philippines,
except under a treaty concurred in by the Senate. Hence, the
constitutionally restricted authority pertains to the entry of the bases,
troops, or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount
consideration is the plain meaning of the language expressed in the
Constitution, or the verba legis rule.175 It is presumed that the provisions
have been carefully crafted in order to express the objective it seeks to
attain.176 It is incumbent upon the Court to refrain from going beyond the
plain meaning of the words used in the Constitution. It is presumed that
the framers and the people meant what they said when they said it,
and that this understanding was reflected in the Constitution and
understood by the people in the way it was meant to be understood
when the fundamental law was ordained and promulgated.177 As this
Court has often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It
is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document,
it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as
possible should be 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. Thus, these are the cases where the need for
construction is reduced to a minimum.178(Emphases supplied)
It is only in those instances in which the constitutional provision is
unclear, ambiguous, or silent that further construction must be done to
elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission on
Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon
its face. The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers'
understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken
literally, the phrase "shall not be allowed in the Philippines" plainly
refers to the entry of bases, troops, or facilities in the country.
The Oxford English Dictionary defines the word "allow" as a transitive
verb that means "to permit, enable"; "to give consent to the occurrence
of or relax restraint on (an action, event, or activity)"; "to consent to the
presence or attendance of (a person)"; and, when with an adverbial of
place, "to permit (a person or animal) to go, come, or be in, out, near,
etc."181 Black's Law Dictionary defines the term as one that means "[t]o
grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition
used to indicate "place or position in space or anything having material
extension: Within the limits or bounds of, within (any place or
thing)."183 That something is the Philippines, which is the noun that
follows.
It is evident that the constitutional restriction refers solely to the initial
entry of the foreign military bases, troops, or facilities. Once entry is
authorized, the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and Philippine law,
and not to the Section 25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines.
This Court stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word "activities" arose from accident.
In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new techniques
of patrol and surveillance to protect the nation's marine resources, sea
search-and-rescue operations to assist vessels in distress, disaster
relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that "Balikatan 02-1," a
"mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context
of the agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related
activities -as opposed to combat itself-such as the one subject of the
instant petition, are indeed authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern
the conduct of foreign military troops in the Philippines,185 readily
implying the legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive
agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA.186 It points out that there are
existing treaties between the Philippines and the U.S. that have
already been concurred in by the Philippine Senate and have thereby
met the requirements of the Constitution under Section 25. Because of
the status of these prior agreements, respondent emphasizes that
EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with
the ponencia's application of verba legis construction to the words of
Article XVIII, Section 25.187 It claims that the provision is "neither plain,
nor that simple."188 To buttress its disagreement, the dissent states that
the provision refers to a historical incident, which is the expiration of
the 1947 MBA.189 Accordingly, this position requires questioning the
circumstances that led to the historical event, and the meaning of the
terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba
legis is not inapplicable just because a provision has a specific
historical context. In fact, every provision of the Constitution has a
specific historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how
a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has
often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should
ever be present in the people's consciousness, its language as much
as possible should be 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. Thus, these are the cases where the need for
construction is reduced to a minimum.190(Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of
terms. In this case, the phrase being construed is "shall not be allowed
in the Philippines" and not the preceding one referring to "the
expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities." It is explicit in the
wording of the provision itself that any interpretation goes beyond the
text itself and into the discussion of the framers, the context of the
Constitutional Commission's time of drafting, and the history of the
1947 MBA. Without reference to these factors, a reader would not
understand those terms. However, for the phrase "shall not be allowed
in the Philippines," there is no need for such reference. The law is
clear. No less than the Senate understood this when it ratified the VFA.
4. The President may generally enter into executive agreements
subject to limitations defined by the Constitution and may be in
furtherance of a treaty already concurred in by the Senate.
We discuss in this section why the President can enter into executive
agreements.
It would be helpful to put into context the contested language found in
Article XVIII, Section 25. Its more exacting requirement was introduced
because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA.191 They felt
constrained to agree to the MBA in fulfilment of one of the major
conditions for the country to gain independence from the U.S.192 As a
result of that experience, a second layer of consent for agreements
that allow military bases, troops and facilities in the country is now
articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a
way that we completely ignore the intent of our constitutional framers
when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that
class of international agreements called "executive agreements."
The power of the President to enter into binding executive agreements
without Senate concurrence is already well-established in this
jurisdiction.193 That power has been alluded to in our present and past
Constitutions,194 in various statutes,195 in Supreme Court
decisions,196 and during the deliberations of the Constitutional
Commission.197 They cover a wide array of subjects with varying scopes
and purposes,198 including those that involve the presence of foreign
military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally
assigned chief architect of our foreign policy,201the President is vested
with the exclusive power to conduct and manage the country's
interface with other states and governments. Being the principal
representative of the Philippines, the Chief Executive speaks and
listens for the nation; initiates, maintains, and develops diplomatic
relations with other states and governments; negotiates and enters into
international agreements; promotes trade, investments, tourism and
other economic relations; and settles international disputes with other
states.202
As previously discussed, this constitutional mandate emanates from
the inherent power of the President to enter into agreements with other
states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence. The
existence of this presidential power203 is so well-entrenched that Section
5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those
official governmental acts that can be the subject of this Court's power
of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in
question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive
agreements are defined as "international agreements embodying
adjustments of detail carrying out well-established national policies and
traditions and those involving arrangements of a more or less
temporary nature."204 In Bayan Muna v. Romulo, this Court further
clarified that executive agreements can cover a wide array of subjects
that have various scopes and purposes.205 They are no longer limited to
the traditional subjects that are usually covered by executive
agreements as identified in Eastern Sea Trading. The Court thoroughly
discussed this matter in the following manner:
The categorization of subject matters that may be covered by
international agreementsmentioned in Eastern Sea Trading is not
cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then,
the conduct of foreign affairs has become more complex and the
domain of international law wider, as to include such subjects as
human rights, the environment, and the sea. In fact, in the US alone,
the executive agreements executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps,
arms limitation, and nuclear safety, among others. Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the
option of each state on the matter of which the international
agreement format would be convenient to serve its best interest.
As Francis Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to
time. Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign
governments. . . . They cover such subjects as the inspection of
vessels, navigation dues, income tax on shipping profits, the admission
of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and
copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate
concurrence.206 This distinctive feature was recognized as early as
in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the
approval of two-thirds of the Senate. Executive
agreements become binding through executive action without the
need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering
such subjects as commercial and consular relations, most-favored-
nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned
by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the
framers specifically deliberated on whether the general term
"international agreement" included executive agreements, and whether
it was necessary to include an express proviso that would exclude
executive agreements from the requirement of Senate concurrence.
After noted constitutionalist Fr. Joaquin Bernas quoted the Court's
ruling in Eastern Sea Trading, the Constitutional Commission members
ultimately decided that the term "international agreements" as
contemplated in Section 21, Article VII, does not include executive
agreements, and that a proviso is no longer needed. Their discussion
is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification from
the Committee. We have retained the words "international agreement"
which I think is the correct judgment on the matter because an
international agreement is different from a treaty. A treaty is a contract
between parties which is in the nature of international agreement and
also a municipal law in the sense that the people are bound. So there
is a conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to
these international negotiations stipulate the conditions which are
necessary for the agreement or whatever it may be to become valid or
effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend
on the nature of the executive agreement? According to common
usage, there are two types of executive agreement: one is purely
proceeding from an executive act which affects external relations
independent of the legislative and the other is an executive act in
pursuance of legislative authorization. The first kind might take the
form of just conventions or exchanges of notes or
protocol while the other, which would be pursuant to the legislative
authorization, may be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to
implement a treaty already enforced or to determine the details for
the implementation of the treaty. We are speaking of executive
agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not
cover the first kind of executive agreement which is just protocol or an
exchange of notes and this would be in the nature of reinforcement of
claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification
for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide,
unless the Committee explains to us otherwise, an explicit
proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of
the Senate. Unless I am enlightened by the Committee I propose that
tentatively, the sentence should read. "No treaty or international
agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court
decision [in Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements
without the necessity of subsequent Congressional approval has
been confirmed by long usage. From the earliest days of our history,
we have entered into executive agreements covering such subjects as
commercial and consular relations, most favored nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this has
never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been
concluded by the executive of various countries under the Act of
Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national
policy and those involving international agreements of a permanent
character usually take the form of treaties. But international
agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those
involving arrangements of a more or less temporary nature usually
take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the
executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say
international agreements which need concurrence by at least two-
thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are
executive agreements essentially but which are proceeding from the
authorization of Congress. If that is our understanding, then I am willing
to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then
it does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the
definition of "executive agreements" and that would make
unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive
agreements" because I heard that these executive agreements must
rely on treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as
executive agreements being the implementation of treaties, details of
which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam
President? Would 99 years be considered permanent? What would be
the measure of permanency? I do not conceive of a treaty that is going
to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is
whether this type of agreement should be included in a provision of the
Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive
agreement of which I am not clear. If the executive agreement
partakes of the nature of a treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a
treaty, it is within the power of the Constitutional Commission to require
that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the
words "international agreements" would include executive
agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question.
Do we take it, therefore, that as far as the Committee is concerned,
the term "international agreements" does not include the term
"executive agreements" as read by the Commissioner in that
text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under
Section 21 was again recognized in Bayan v. Zamora and in Bayan
Muna v. Romulo. These cases, both decided under the aegis of the
present Constitution, quoted Eastern Sea Trading in reiterating that
executive agreements are valid and binding even without the
concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are
concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works
of noted scholars,208 executive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a
treaty;209 (2) pursuant to or upon confirmation by an act of the
Legislature;210 or (3) in the exercise of the President's independent
powers under the Constitution.211 The raison d'etre of executive
agreements hinges on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic
variation in international agreements. International practice has
accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty - which
connotes a formal, solemn instrument - to engagements concluded in
modem, simplified forms that no longer necessitate ratification.212 An
international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between
a treaty and an international agreement or even an executive
agreement is irrelevant for purposes of determining international rights
and obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international agreements, and executive
agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important
features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or
implied authorization under the Constitution, statutes, or treaties. The
absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of
the Executive is to enforce the Constitution and the laws enacted by
the Legislature, not to defeat or interfere in the performance of these
rules.214 In turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably implied in the
law they purport to implement.
Second, treaties are, by their very nature, considered superior to
executive agreements. Treaties are products of the acts of the
Executive and the Senate215 unlike executive agreements, which are
solely executive actions.216Because of legislative participation through
the Senate, a treaty is regarded as being on the same level as a
statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law
or a treaty are considered ineffective.219 Both types of international
agreement are nevertheless subject to the supremacy of the
Constitution.220
This rule does not imply, though, that the President is given carte
blanche to exercise this discretion. Although the Chief Executive wields
the exclusive authority to conduct our foreign relations, this power must
still be exercised within the context and the parameters set by the
Constitution, as well as by existing domestic and international laws.
There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that
involve the following:
a. The policy of freedom from nuclear weapons within
Philippine territory221
b. The fixing of tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts, which must be
pursuant to the authority granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a
law concurred in by a majority of all the Members of Congress223
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously concurred
in by the Monetary Board224
e. The authorization of the presence of foreign military bases,
troops, or facilities in the country must be in the form of a treaty
duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the
concurrence of the Senate is required, should the form of the
government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an
executive agreement or a treaty.
No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless
the case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the
Constitutional Commission, they were aware that legally binding
international agreements were being entered into by countries in forms
other than a treaty. At the same time, it is clear that they were also
keen to preserve the concept of "executive agreements" and the right
of the President to enter into such agreements.
What we can glean from the discussions of the Constitutional
Commissioners is that they understood the following realities:
1. Treaties, international agreements, and executive
agreements are all constitutional manifestations of the conduct
of foreign affairs with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines
and other States-parties, which are in the nature of
international agreements, and also of municipal laws in
the sense of their binding nature.226
b. International agreements are similar instruments, the
provisions of which may require the ratification of a
designated number of parties thereto. These
agreements involving political issues or changes in
national policy, as well as those involving international
agreements of a permanent character, usually take the
form of treaties. They may also include commercial
agreements, which are executive agreements
essentially, but which proceed from previous
 authorization by Congress, thus dispensing with the
requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to
implement a treaty already enforced or to determine the
details of the implementation thereof that do not affect
the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere
executive agreements must, by constitutional decree, be
concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of
foreign military troops, bases, or facilities - is particularly
restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it
be ratified by a majority of the votes cast by the people in a
national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a
species of international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the
scope of her constitutional authority and discretion when she chose to
enter into the RP-U.S. Non-Surrender Agreement in the form of an
executive agreement, instead of a treaty, and in ratifying the
agreement without Senate concurrence. The Court en banc discussed
this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. x x x x. Pressing its point, petitioner
submits that the subject of the Agreement does not fall under any of
the subject-categories that xx x may be covered by an executive
agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast
in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive
agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties'
intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter
of form takes a back seat when it comes to effectiveness and binding
effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta
sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save
for the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution - when a treaty is required, the Constitution does not
classify any subject, like that involving political issues, to be in
the form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a
vote defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct
in the external affairs of the nation is, as Bayan would put it, "executive
altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03,
then President Gloria Macapagal-Arroyo, represented by the Secretary
of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the
day, the President - by ratifying, thru her deputies, the non-
surrender agreement - did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a
larger measure of authority and wider discretion, subject only to the
least amount of checks and restrictions under the Constitution.229 The
rationale behind this power and discretion was recognized by the Court
in Vinuya v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the
Negotiation of International Agreements and its Ratification, thus,
correctly reflected the inherent powers of the President when it stated
that the DFA "shall determine whether an agreement is an executive
agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court
does not look into whether an international agreement should be in the
form of a treaty or an executive agreement, save in cases in which the
Constitution or a statute requires otherwise. Rather, in view of the vast
constitutional powers and prerogatives granted to the President in the
field of foreign affairs, the task of the Court is to determine whether the
international agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military
forces if it merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting the
details of a law or a treaty that already deals with the presence of
foreign military forces is not at all unusual in this jurisdiction. In fact, the
Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary.231 In that case, the Court was asked to scrutinize
the constitutionality of the Terms of Reference of the Balikatan 02-
1 joint military exercises, which sought to implement the VFA.
Concluded in the form of an executive agreement, the Terms of
Reference detailed the coverage of the term "activities" mentioned in
the treaty and settled the matters pertaining to the construction of
temporary structures for the U.S. troops during the activities; the
duration and location of the exercises; the number of participants; and
the extent of and limitations on the activities of the U.S. forces. The
Court upheld the Terms of Reference as being consistent with the
VFA. It no longer took issue with the fact that the Balikatan Terms of
Reference was not in the form of a treaty concurred in by the Senate,
even if it dealt with the regulation of the activities of foreign military
forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision
of the VFA. The Philippines and the U.S. entered into the Romulo-
Kenney Agreement, which undertook to clarify the detention of a U.S.
Armed Forces member, whose case was pending appeal after his
conviction by a trial court for the crime of rape. In testing the validity of
the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of
the treaty it purports to implement. It was eventually ruled that the
Romulo-Kenney Agreement was "not in accord" with the VFA, since
the former was squarely inconsistent with a provision in the treaty
requiring that the detention be "by Philippine authorities."
Consequently, the Court ordered the Secretary of Foreign Affairs to
comply with the VFA and "forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities
under Philippine authorities as provided in Art. V, Sec. 10 of the VFA.
"233
Culling from the foregoing discussions, we reiterate the following
pronouncements to guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains
stringent requirements that must be fulfilled by the international
agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must
be in the form of a treaty, and (b) it must be duly concurred in
by the Senate.
2. If the agreement is not covered by the above situation, then
the President may choose the form of the
agreement (i.e., either an executive agreement or a treaty),
provided that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first
allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the
parameters, limitations, and standards set by the law and/or
treaty that the former purports to implement; and must not
unduly expand the international obligation expressly mentioned
or necessarily implied in the law or treaty.
 4. The executive agreement must be consistent with the
Constitution, as well as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an
executive agreement, respondents carry the burden of proving that it is
a mere implementation of existing laws and treaties concurred in by the
Senate. EDCA must thus be carefully dissected to ascertain if it
remains within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework
of the MDT and the VFA
The starting point of our analysis is the rule that "an executive
agreement xx x may not be used to amend a treaty."234 In Lim v.
Executive Secretary and in Nicolas v. Romulo, the Court approached
the question of the validity of executive agreements by comparing them
with the general framework and the specific provisions of the treaties
they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was
scrutinized by studying "the framework of the treaty antecedents to
which the Philippines bound itself,"235 i.e., the MDT and the VFA. The
Court proceeded to examine the extent of the term "activities" as
contemplated in Articles 1236 and II237 of the VFA. It later on found that
the term "activities" was deliberately left undefined and ambiguous in
order to permit "a wide scope of undertakings subject only to the
approval of the Philippine government"238 and thereby allow the parties
"a certain leeway in negotiation."239 The Court eventually ruled that the
Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied
the provisions of the VFA on custody and detention to ascertain the
validity of the Romulo-Kenney Agreement.240 It eventually found that the
two international agreements were not in accord, since the Romulo-
Kenney Agreement had stipulated that U.S. military personnel shall be
detained at the U.S. Embassy Compound and guarded by U.S. military
personnel, instead of by Philippine authorities. According to the Court,
the parties "recognized the difference between custody during the trial
and detention after conviction."241 Pursuant to Article V(6) of the VFA,
the custody of a U.S. military personnel resides with U.S. military
authorities during trial. Once there is a finding of guilt, Article V(l0)
requires that the confinement or detention be "by Philippine
authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA
"substantially modifies or amends the VFA"242and follows with an
enumeration of the differences between EDCA and the VFA. While
these arguments will be rebutted more fully further on, an initial answer
can already be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate
visits as the VFA does, but allows temporary stationing on a rotational
basis of U.S. military personnel and their contractors in physical
locations with permanent facilities and pre-positioned military materiel.
This argument does not take into account that these permanent
facilities, while built by U.S. forces, are to be owned by the Philippines
once constructed.243 Even the VFA allowed construction for the benefit
of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of
warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles,
vessels, and aircraft to be brought into the country. Articles VII and VIII
of the VFA contemplates that U.S. equipment, materials, supplies, and
other property are imported into or acquired in the Philippines by or on
behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities under the
VFA. These provisions likewise provide for the waiver of the specific
duties, taxes, charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that
the VFA contemplates the entry of troops for training exercises,
whereas EDCA allows the use of territory for launching military and
paramilitary operations conducted in other states.245 The dissent of
Justice Teresita J. Leonardo-De Castro also notes that VFA was
intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military
necessity or had a martial character, and were therefore not
contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms
that combat-related activities, as opposed to actual combat, were
allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA
support the conclusion that combat-related activities as opposed to
combat itself such as the one subject of the instant petition, are indeed
authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said
to have strayed from the intent of the VFA since EDCA's combat-
related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities
actually are. Both the VFA and EDCA deal with the presence of U.S.
forces within the Philippines, but make no mention of being platforms
for activity beyond Philippine territory. While it may be that, as applied,
military operations under either the VFA or EDCA would be carried out
in the future the scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or blatantly illegal
provisions. Hence, we cannot invalidate EDCA on the basis of the
potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new
concept not contemplated in the VFA or the MDT: Agreed Locations,
Contractors, Pre-positioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and
individually in the latter analysis of EDCA's provisions. However, it
must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They
must be sourced from the authority derived from the treaty, but are not
necessarily expressed word-for-word in the mother treaty. This concern
shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the
VFA does not have provisions that may be construed as a restriction
on or modification of obligations found in existing statues, including the
jurisdiction of courts, local autonomy, and taxation. Implied in this
argument is that EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions
of EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in all
instances contemplated by both agreements, with the exception of
those outlined by the VFA in Articles III-VI. In the VFA, taxes are
clearly waived whereas in EDCA, taxes are assumed by the
government as will be discussed later on. This fact does not, therefore,
produce a diminution of jurisdiction on the part of the Philippines, but
rather a recognition of sovereignty and the rights that attend it, some of
which may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be
compared with those of the MDT and the VFA, which are the two
treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized
activities" under EDCA: (1) U.S. personnel and (2) U.S.
contractors
The OSG argues250 that EDCA merely details existing policies under the
MDT and the VFA. It explains that EDCA articulates the principle of
defensive preparation embodied in Article II of the MDT; and seeks to
enhance the defensive, strategic, and technological capabilities of both
parties pursuant to the objective of the treaty to strengthen those
capabilities to prevent or resist a possible armed attack. Respondent
also points out that EDCA simply implements Article I of the VFA,
which already allows the entry of U.S. troops and personnel into the
country. Respondent stresses this Court's recognition in Lim v.
Executive Secretary that U.S. troops and personnel are authorized to
conduct activities that promote the goal of maintaining and developing
their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically
authorize the entry of U.S. troops in the country in order to maintain
and develop the individual and collective capacities of both the
Philippines and the U.S. to resist an armed attack. They emphasize
that the treaty was concluded at a time when there was as yet no
specific constitutional prohibition on the presence of foreign military
forces in the country.
Petitioners also challenge the argument that EDCA simply implements
the VFA. They assert that the agreement covers only short-
term or temporary visits of U.S. troops "from time to time" for the
specific purpose of combined military exercises with their Filipino
counterparts. They stress that, in contrast, U.S. troops are allowed
under EDCA to perform activities beyond combined military exercises,
such as those enumerated in Articles 111(1) and IV(4) thereof.
Furthermore, there is some degree of permanence in the presence of
U.S. troops in the country, since the effectivity of EDCA is continuous
until terminated. They proceed to argue that while troops have a
"rotational" presence, this scheme in fact fosters their permanent
presence.
a. Admission of U.S. military and civilian personnel into Philippine
territory is already allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in
the country of three distinct classes of individuals who will be
conducting different types of activities within the Agreed Locations: (1)
U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors. The agreement refers to them as follows:
"United States personnel" means United States
military and civilian personnel temporarily in the territory of the
Philippines in connection with activities approved by the
Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United
States personnel and all property, equipment, and materiel of the
United States Armed Forces present in the territory of the Philippines.253
"United States contractors" means companies and firms, and their
employees, under contract or subcontract to or on behalf of the
United States Department of Defense. United States contractors
are not included as part of the definition of United States
personnel in this Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies,
equipment, and services (including construction) to be furnished or
undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited,
awarded, and administered in accordance with the laws and
regulations of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the
agreement does not deal with the entry into the country of U.S.
personnel and contractors per se. While Articles I(l)(b)256 and
II(4)257 speak of "the right to access and use" the Agreed Locations,
their wordings indicate the presumption that these groups have already
been allowed entry into Philippine territory, for which, unlike the VFA,
EDCA has no specific provision. Instead, Article II of the latter simply
alludes to the VFA in describing U.S. personnel, a term defined under
Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Within this definition:
1. The term "military personnel" refers to military
members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals
who are neither nationals of nor ordinarily resident
in the Philippines and who are employed by the
United States armed forces or who are
accompanying the United States armed forces, such
as employees of the American Red Cross and
the United Services Organization.258
Article II of EDCA must then be read with Article III of the VFA, which
provides for the entry accommodations to be accorded to U.S. military
and civilian personnel:
1. The Government of the Philippines shall
facilitate the admission of United States personnel and their
departure from the Philippines in connection with activities
covered by this agreement.
2. United States military personnel shall be exempt from
passport and visa regulations upon enteringand departing
the Philippines.
3. The following documents only, which shall be required in
respect of United States military personnel who enter the
Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid
passports upon entry and departure of the Philippines.
(Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows
U.S. military and civilian personnel to be "temporarily in the
Philippines," so long as their presence is "in connection with activities
approved by the Philippine Government." The Philippines, through
Article III, even guarantees that it shall facilitate the admission of U.S.
personnel into the country and grant exemptions from passport and
visa regulations. The VFA does not even limit their temporary presence
to specific locations.
Based on the above provisions, the admission and presence
of U.S. military and civilian personnel in Philippine territory are
already allowed under the VFA, the treaty supposedly being
implemented by EDCA. What EDCA has effectively done, in fact, is
merely provide the mechanism to identify the locations in which U.S.
personnel may perform allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and limits the presence of U.S.
personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S.
contractors into Philippine territory; their entry must be sourced from
extraneous Philippine statutes and regulations for the admission of
alien employees or business persons.
Of the three aforementioned classes of individuals who will be
conducting certain activities within the Agreed Locations, we note that
only U.S. contractors are not explicitly mentioned in the VFA. This does
not mean, though, that the recognition of their presence under EDCA
is ipso facto an amendment of the treaty, and that there must be
Senate concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate
admission into the Philippines. Articles III and IV, in fact, merely grant
them the right of access to, and the authority to conduct certain
activities within the Agreed Locations. Since Article II(3) of EDCA
specifically leaves out U.S. contractors from the coverage of the VFA,
they shall not be granted the same entry accommodations and
privileges as those enjoyed by U.S. military and civilian personnel
under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country.259 We emphasize
that the admission of aliens into Philippine territory is "a matter of pure
permission and simple tolerance which creates no obligation on the
part of the government to permit them to stay."260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors are subject
to Philippine immigration laws.261The latter must comply with our visa
and passport regulations262 and prove that they are not subject to
exclusion under any provision of Philippine immigration laws.263 The
President may also deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission of aliens whose
presence in the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to
expel or deport U.S. contractors265 as may be necessitated by national
security, public safety, public health, public morals, and national
interest.266 They may also be deported if they are found to be illegal or
undesirable aliens pursuant to the Philippine Immigration Act267 and the
Data Privacy Act.268 In contrast, Article 111(5) of the VFA requires a
request for removal from the Philippine government before a member
of the U.S. personnel may be "dispos[ed] xx x outside of the
Philippines."
c. Authorized activities of U.S. military and civilian personnel within
Philippine territory are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and
the VFA that pertain to the activities in which U.S. military and civilian
personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly byself-help and mutual
aid will maintain and develop their individual and collective
capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies,
will consult together from time to time regarding the implementation
of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of
August 30, 1951;
Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the
Republic of the Philippines promotes their common security
interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular,
from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that
this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and
other property imported into or acquired in the Philippines by or on
behalf of the United States armed forces in connection with activities
to which this agreement applies, shall be free of all Philippine duties,
taxes and other similar charges. Title to such property shall remain with
the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar
charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in implementing
arrangements.
2. Vessels operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance with
international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary. x x x
(Emphases Supplied)
Manifest in these provisions is the abundance of references to the
creation of further "implementing arrangements" including the
identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing
arrangements and activities, we referred to the content, purpose, and
framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both
countries shall engage in joint activities, so that they can maintain and
develop their defense capabilities. The wording itself evidently invites a
reasonable construction that the joint activities shall
involve joint military trainings, maneuvers, and exercises. Both the
interpretation269 and the subsequent practice270 of the parties show that
the MDT independently allows joint military exercises in the
country. Lim v. Executive Secretary271 and Nicolas v.
Romulo272 recognized that Balikatan exercises, which are activities that
seek to enhance and develop the strategic and technological
capabilities of the parties to resist an armed attack, "fall squarely under
the provisions of the RP-US MDT."273 In Lim, the Court especially noted
that the Philippines and the U.S. continued to conduct joint military
exercises even after the expiration of the MBA and even before the
conclusion of the VFA.274 These activities presumably related to the
Status of Forces Agreement, in which the parties agreed on the status
to be accorded to U.S. military and civilian personnel while conducting
activities in the Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT that
these joint activities may be conducted on Philippine or on U.S. soil.
The article expressly provides that the term armed attack includes "an
armed attack on the metropolitan territory of either of the Parties, or
on the island territories under its jurisdiction in the Pacific or on
its armed forces, public vessels or aircraft in the Pacific." Surely, in
maintaining and developing our defense capabilities, an assessment or
training will need to be performed, separately and jointly by self-help
and mutual aid, in the territories of the contracting parties. It is
reasonable to conclude that the assessment of defense capabilities
would entail understanding the terrain, wind flow patterns, and other
environmental factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to
respond to attacks in vulnerable areas would be part of the training of
the parties to maintain and develop their capacity to resist an actual
armed attack and to test and validate the defense plan of the
Philippines. It is likewise reasonable to imagine that part of the training
would involve an analysis of the effect of the weapons that may be
used and how to be prepared for the eventuality. This Court recognizes
that all of this may require training in the area where an armed attack
might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those
of the VFA.
Article I of the VFA indicates that the presence of U.S. military and
civilian personnel in the Philippines is "in connection with activities
approved by the Philippine Government." While the treaty does not
expressly enumerate or detail the nature of activities of U.S. troops in
the country, its Preamble makes explicit references to the reaffirmation
of the obligations of both countries under the MDT. These obligations
include the strengthening of international and regional security in the
Pacific area and the promotion of common security interests.
The Court has already settled in Lim v. Executive Secretary that the
phrase "activities approved by the Philippine Government" under
Article I of the VFA was intended to be ambiguous in order to afford the
parties flexibility to adjust the details of the purpose of the visit of U.S.
personnel.276 In ruling that the Terms of Reference for
the Balikatan Exercises in 2002 fell within the context of the treaty, this
Court explained:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word "activities" arose from
accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than
military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the
like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that "Balikatan 02-
1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself-
such as the one subject of the instant petition, are indeed authorized.
(Emphases Supplied)
The joint report of the Senate committees on foreign relations and on
national defense and security further explains the wide range and
variety of activities contemplated in the VFA, and how these activities
shall be identified:277
These joint exercises envisioned in the VFA are not limited to
combat-related activities; they have a wide range and variety. They
include exercises that will reinforce the AFP's ability to acquire new
techniques of patrol and surveillance to protect the country's
maritime resources; sea-search and rescue operations to assist
ships in distress; and disaster-relief operations to aid the civilian
victims of natural calamities, such as earthquakes, typhoons and tidal
waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training
in aircraft maintenance and equipment repair; civic-action projects; and
consultations and meetings of the Philippine-U.S. Mutual Defense
Board. It is at the level of the Mutual Defense Board-which is
headed jointly by the Chief of Staff of the AFP and the Commander in
Chief of the U.S. Pacific Command-that the VFA exercises are
planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what
activities will be conductedbetween the armed forces of the U.S. and
the Philippines. The VFA regulates and provides the legal
framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and
other related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint
report of the Senate committees on foreign relations and on
national defense and security, and the ruling of this Court
in Lim is that the "activities" referred to in the treaty are meant to
be specified and identified infurther agreements. EDCA is one
such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-
approved activities of U.S. personnel referred to in the VFA. EDCA
allows U.S. military and civilian personnel to perform "activities
approved by the Philippines, as those terms are defined in the
VFA"278 and clarifies that these activities include those conducted within
the Agreed Locations:
1. Security cooperation exercises; joint and combined training
activities; humanitarian assistance and disaster relief activities; and
such other activities as may be agreed upon by the Parties279
2. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of
forces and materiel; and such other activities as the Parties may
agree280
3. Exercise of operational control over the Agreed Locations for
construction activities and other types of activity, including alterations
and improvements thereof281
4. Exercise of all rights and authorities within the Agreed Locations that
are necessary for their operational control or defense, including the
adoption of apfropriate measures to protect U.S. forces and
contractors282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the
utilization of such means and services as are required to ensure the full
ability to operate telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities
is to maintain and develop, jointly and by mutual aid, the individual and
collective capacities of both countries to resist an armed attack. It
further states that the activities are in furtherance of the MDT and
within the context of the VFA.
We note that these planned activities are very similar to those under
the Terms of Reference285 mentioned in Lim. Both EDCA and the Terms
of Reference authorize the U.S. to perform the following: (a) participate
in training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their
respective resources, equipment and other assets; and (e) exercise
their right to self-defense. We quote the relevant portion of the Terms
and Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop billeting,
classroom instruction and messing may be set up for use by RP
and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance
will US Forces operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain command over
their respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not
more than six months, with the projected participation of 660 US
personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct
the Exercise Co-Directors to wind up and terminate the Exercise and
other activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and
training Exercise relative to Philippine efforts against the ASG, and
will be conducted on the Island of Basilan. Further advising, assisting
and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the
Exercise.
xx xx.
US exercise participants shall not engage in combat, without
prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise only and
do not create additional legal obligations between the US Government
and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual
military assisting, advising and trainingof RP and
US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate
independently within RP territory.
 c. Flight plans of all aircraft involved in the exercise will
comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources,
equipment and other assets. They will use their respective
logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework
of the MDT and the VFA, we find that EDCA has remained within the
parameters set in these two treaties. Just like the Terms of Reference
mentioned in Lim, mere adjustments in detail to implement the MDT
and the VFA can be in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in
EDCA is no longer consistent with the temporary nature of the visits as
contemplated in the VFA. They point out that Article XII(4) of EDCA
has an initial term of 10 years, a term automatically renewed unless the
Philippines or the U.S. terminates the agreement. According to
petitioners, such length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro
likewise argues in her Concurring and Dissenting Opinion that the VFA
contemplated mere temporary visits from U.S. forces, whereas EDCA
allows an unlimited period for U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by
limiting itself to 10 years of effectivity. Although this term is
automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the
10 year period. Clearly, this method does not create a permanent
obligation.
Drawing on the reasoning in Lim, we also believe that it could not have
been by chance that the VFA does not include a maximum time limit
with respect to the presence of U.S. personnel in the country. We
construe this lack of specificity as a deliberate effort on the part of the
Philippine and the U.S. governments to leave out this aspect and
reserve it for the "adjustment in detail" stage of the implementation of
the treaty. We interpret the subsequent, unconditional concurrence of
the Senate in the entire text of the VFA as an implicit grant to the
President of a margin of appreciation in determining the duration of the
"temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under
EDCA is "more permanent" in nature.289However, this argument has not
taken root by virtue of a simple glance at its provisions on the effectivity
period. EDCA does not grant permanent bases, but rather temporary
rotational access to facilities for efficiency. As Professor Aileen S.P.
Baviera notes:
The new EDCA would grant American troops, ships and planes
rotational access to facilities of the Armed Forces of the Philippines –
but not permanent bases which are prohibited under the Philippine
Constitution - with the result of reducing response time should an
external threat from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice
of states as shown in other defense cooperation agreements. For
example, Article XIV(l) of the U.S.-Romania defense agreement
provides the following:
This Agreement is concluded for an indefinite period and shall enter
into force in accordance with the internal laws of each Party x x x.
(emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces
Agreement reads:
This Agreement has been concluded for an indefinite period of
time. It may be terminated by written notification by either Party and in
that event it terminates 2 years after the receipt of the notification.
(emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly
provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII,
and Annexes A and B, shall become effective on the date of the last
signature affixed below and shall remain in force until terminated by
the Parties, provided that it may be terminated by either Party upon
180 days written notice of its intention to do so to the other Party.
(emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture
Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and
thereafter shall continue in force, but may be terminated by either
Party at any time upon one year's written notice to the other Party
through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but
with a term less than half of that is provided in the latter agreement.
This means that EDCA merely follows the practice of other states in
not specifying a non-extendible maximum term. This practice, however,
does not automatically grant a badge of permanency to its terms.
Article XII(4) of EDCA provides very clearly, in fact, that its effectivity is
for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to
conclude that the initial, extendible term of 10 years somehow gives
EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional
role of the President who, as Commander-in-Chief of our armed forces,
is the principal strategist of the nation and, as such, duty-bound to
defend our national sovereignty and territorial integrity;291 who, as chief
architect of our foreign relations, is the head policymaker tasked to
assess, ensure, and protect our national security and interests;292 who
holds the most comprehensive and most confidential information about
foreign countries293 that may affect how we conduct our external affairs;
and who has unrestricted access to highly classified military
intelligence data294 that may threaten the life of the nation. Thus, if after
a geopolitical prognosis of situations affecting the country, a belief is
engendered that a much longer period of military training is needed,
the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns,
we acknowledge that the President may not always be able to candidly
and openly discuss the complete situation being faced by the nation.
The Chief Executive's hands must not be unduly tied, especially if the
situation calls for crafting programs and setting timelines for approved
activities. These activities may be necessary for maintaining and
developing our capacity to resist an armed attack, ensuring our
national sovereignty and territorial integrity, and securing our national
interests. If the Senate decides that the President is in the best position
to define in operational terms the meaning of temporary in relation to
the visits, considered individually or in their totality, the Court must
respect that policy decision. If the Senate feels that there is no need to
set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to
the extent of the "temporary" nature of the visits of U.S. personnel does
not suggest that the duration to which the President may agree is
unlimited. Instead, the boundaries of the meaning of the
term temporary in Article I of the treaty must be measured depending
on the purpose of each visit or activity.295 That purpose must be
analyzed on a case-by-case basis depending on the factual
circumstances surrounding the conclusion of the implementing
agreement. While the validity of the President's actions will be judged
under less stringent standards, the power of this Court to determine
whether there was grave abuse of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within Philippine
territory - who were legitimately permitted to enter the country
independent of EDCA - are subject to relevant Philippine statutes and
regulations and must be consistent with the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's
purported practice of hiring private security contractors in other
countries. They claim that these contractors - one of which has already
been operating in Mindanao since 2004 - have been implicated in
incidents or scandals in other parts of the globe involving rendition,
torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they
are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to
perform only the following activities:
1. Training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and
materiel298
3. Carrying out of matters in accordance with, and to the extent
permissible under, U.S. laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain privileges
denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300and carrying, owning, and possessing
firearms301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of
contractors. In the 2015 Foreign Investment Negative list,302 the
Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list -
private security agencies that cannot have any foreign equity by virtue
of Section 4 of Republic Act No. 5487;303 and No. 15, which regulates
contracts for the construction of defense-related structures based on
Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA
must subscribe to corporate and civil requirements imposed by the law,
depending on the entity's corporate structure and the nature of its
business.
That Philippine laws extraneous to EDCA shall govern the regulation of
the activities of U.S. contractors has been clear even to some of the
present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was
accused of spilling fuel in the waters off Manila Bay.304 The Senate
Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed
environmental and procedural violations by the contractor.305 The U.S.
Navy investigated the contractor and promised stricter guidelines to be
imposed upon its contractors.306 The statement attributed to
Commander Ron Steiner of the public affairs office of the U.S. Navy's
7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is
of particular relevance. The statement acknowledges not just the
presence of the contractors, but also the U.S. position that these
contractors are bound by the local laws of their host state. This stance
was echoed by other U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the
presence of U.S. contractors for the purpose of fulfilling the terms of
the VFA. That they are bound by Philippine law is clear to all, even to
the U.S.
As applied to EDCA, even when U.S. contractors are granted access
to the Agreed Locations, all their activities must be consistent with
Philippine laws and regulations and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the
Court enough justification to strike down EDCA. In Lim v. Executive
Secretary, we have already explained that we cannot take judicial
notice of claims aired in news reports, "not because of any issue as to
their truth, accuracy, or impartiality, but for the simple reason that facts
must be established in accordance with the rules of evidence."308 What
is more, we cannot move one step ahead and speculate that the
alleged illegal activities of these contractors in other countries would
take place in the Philippines with certainty. As can be seen from the
above discussion, making sure that U.S. contractors comply with
Philippine laws is a function of law enforcement. EDCA does not stand
in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly
excluded from the coverage of the VFA. As visiting aliens, their entry,
presence, and activities are subject to all laws and treaties applicable
within the Philippine territory. They may be refused entry or expelled
from the country if they engage in illegal or undesirable activities.
There is nothing that prevents them from being detained in the country
or being subject to the jurisdiction of our courts. Our penal laws,309 labor
laws,310 and immigrations laws311 apply to them and therefore limit their
activities here. Until and unless there is another law or treaty that
specifically deals with their entry and activities, their presence in the
country is subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled
military facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment
of U.S. military bases through the "euphemistically" termed "Agreed
Locations. "312 Alluding to the definition of this term in Article II(4) of
EDCA, they point out that these locations are actually military bases,
as the definition refers to facilities and areas to which U.S. military
forces have access for a variety of purposes. Petitioners claim that
there are several badges of exclusivity in the use of the Agreed
Locations by U.S. forces. First, Article V(2) of EDCA alludes to a
"return" of these areas once they are no longer needed by U.S. forces,
indicating that there would be some transfer of use. Second, Article
IV(4) ofEDCA talks about American forces' unimpeded access to the
Agreed Locations for all matters relating to the prepositioning and
storage of U.S. military equipment, supplies, and materiel. Third, Article
VII of EDCA authorizes U.S. forces to use public utilities and to operate
their own telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions
of EDCA by presenting so-called "badges of exclusivity," despite the
presence of contrary provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However,
the use of the word "return" is within the context of a lengthy provision.
The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations,
or any portion thereof, including non-relocatable structures and
assemblies constructed, modified, or improved by the United States,
once no longer required by United States forces for activities under this
Agreement. The Parties or the Designated Authorities shall consult
regarding the terms of return of any Agreed Locations, including
possible compensation for improvements or construction.
The context of use is "required by United States forces for activities
under this Agreement." Therefore, the return of an Agreed Location
would be within the parameters of an activity that the Mutual Defense
Board (MDB) and the Security Engagement Board (SEB) would
authorize. Thus, possession by the U.S. prior to its return of the Agreed
Location would be based on the authority given to it by a joint body co-
chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense
and Department of Foreign Affairs sitting as members."313 The terms
shall be negotiated by both the Philippines and the U.S., or through
their Designated Authorities. This provision, seen as a whole,
contradicts petitioners' interpretation of the return as a "badge of
exclusivity." In fact, it shows the cooperation and partnership aspect of
EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a
contextual perspective. Article IV(4) states that U.S. forces and U.S.
contractors shall have "unimpeded access to Agreed Locations for all
matters relating to the prepositioning and storage of defense
equipment, supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment,
supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives
the U.S. the authority to bring in these equipment, supplies, and
materiel through the MDB and SEB security mechanism. These items
are owned by the U.S.,314 are exclusively for the use of the U.S.315 and,
after going through the joint consent mechanisms of the MDB and the
SEB, are within the control of the U.S.316 More importantly, before these
items are considered prepositioned, they must have gone through the
process of prior authorization by the MDB and the SEB and given
proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a
necessary adjunct to the ownership, use, and control of the U.S. over
its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states since
the time of the MDT and the VFA. It is not the use of the Agreed
Locations that is exclusive per se; it is mere access to items in order to
exercise the rights of ownership granted by virtue of the Philippine Civil
Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities
and to operate their own telecommunications system, it will be met and
answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in
fact bears a one-to-one correspondence with the provisions of the
1947 MBA. They assert that both agreements (a) allow similar activities
within the area; (b) provide for the same "species of ownership" over
facilities; and (c) grant operational control over the entire area. Finally,
they argue320 that EDCA is in fact an implementation of the new
defense policy of the U.S. According to them, this policy was not what
was originally intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that under the
MBA, the U.S. had the right to construct, operate, maintain, utilize,
occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed
Locations specifically for construction activities. They do not allow the
overarching power to operate, maintain, utilize, occupy, garrison, and
control a base with full discretion. EDCA in fact limits the rights of the
U.S. in respect of every activity, including construction, by giving the
MDB and the SEB the power to determine the details of all activities
such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322
The "species of ownership" on the other hand, is distinguished by the
nature of the property. For immovable property constructed or
developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.323 On the other hand, for
movable properties brought into the Philippines by the U.S., EDCA
provides that ownership is retained by the latter. In contrast, the MBA
dictates that the U.S. retains ownership over immovable and movable
properties.
To our mind, both EDCA and the MBA simply incorporate what is
already the law of the land in the Philippines. The Civil Code's
provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another
person's property.324
The parallelism, however, ends when the situation involves facilities
that can be considered immovable. Under the MBA, the U.S. retains
ownership if it paid for the facility.325 Under EDCA, an immovable is
owned by the Philippines, even if built completely on the back of U.S.
funding.326 This is consistent with the constitutional prohibition on
foreign land ownership.327
Despite the apparent similarity, the ownership of property is but a part
of a larger whole that must be considered before the constitutional
restriction is violated. Thus, petitioners' points on operational control
will be given more attention in the discussion below. The arguments on
policy are, however, outside the scope of judicial review and will not be
discussed
Moreover, a direct comparison of the MBA and EDCA will result in
several important distinctions that would allay suspicion that EDCA is
but a disguised version of the MBA.
b. There are substantial matters that the US. cannot do under EDCA,
but which it was authorized to do under the 1947 MBA
The Philippine experience with U.S. military bases under the 1947
MBA is simply not possible under EDCA for a number of important
reasons.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and
over Philippine territory occupied by American bases. In contrast, the
U.S. under EDCA does not enjoy any such right over any part of the
 Philippines in which its forces or equipment may be found. Below is a
comparative table between the old treaty and EDCA:
7 MBA/ 1946 Treaty of General Relations
Art. I(1):
ment of the Republic of
nes (hereinafter referred to as the
grants to the Government of the United
merica (hereinafter referred to as the United
right to retain the use of the bases in the
listed in Annex A attached hereto.
Art. XVII(2):
gs and structures which are erected by the
es in the bases shall be the property of the
es and may be removed by it before the
f this Agreement or the earlier relinquishment of
which the structures are situated. There shall be
n on the part of the Philippines or of the United
build or repair any destruction or damage inflicted
use whatsoever on any of the said buildings or
wned or used by the United States in the bases. x
y of Gen. Relations, Art. I:
States of America agrees to withdraw and
nd does hereby withdraw and surrender, all
ossession, supervision, jurisdiction, control or
y existing and exercised by the United States of
and over the territory and the people of the
slands, except the use of such bases,
appurtenances to such bases, and the rights
ereto, as the United States of America, by
with the Republic of the Philippines may deem
o retain for the mutual protection of the Republic
of the Philippines and of the United States of America. x x x. 4. All buildings, non-relocatable structures, and
assemblies affixed to the land in the Agreed
Locations, including ones altered or improved b
EDCA States forces, remain the property of the
Philippines.Permanent buildings constructed by U
EDCA, preamble: States forces become the property of the Philippin
constructed, but shall be used by United States for
Affirming that the Parties share an understanding for the longer required by United States forces.
United States not to establish a permanent military
presence or base in the territory of the Philippines;
xxxx
Second, in the bases agreement, the U.S. and the Philippines were
visibly not on equal footing when it came to deciding whether to
Recognizing that all United States accessexpand to and or
useto of
increase the number of bases, as the Philippines may be
facilities and areas will be at the invitationcompelled
of the to negotiate with the U.S. the moment the latter requested
Philippines and with full respect for the an Philippine
expansion of the existing bases or to acquire additional bases. In
Constitution and Philippine laws; EDCA, U.S. access is purely at the invitation of the Philippines.
xxxx
1947 MBA/ 1946 Treaty of General Relations EDCA
EDCA, Art. II(4):
1947 MBA, Art.I(3): EDCA, preamble:
"Agreed Locations" means facilities and areas that
Thethe
Philippines agree to enter into negotiations with the Recognizing that all United States access to and
are provided by Government of the
Philippines through the AFP and that Unitedrequest,
United States at the latter's to permit the United
States forces, facilities and areas will be at the invitation of the
United States contractors, and others as mutually agreed, such bases for
States to expand such bases, to exchange Philippines and with full respect for the Philippi
shall have the other bases,
right to to and
access acquire additional
use pursuant to bases,
this or relinquish rights Constitution and Philippine laws;
to bases, as any of such exigencies may
Agreement. Such Agreed Locations may be listed in an annex be required by
military necessity.
to be appended to this Agreement, and may be further xxxx
described in implementing arrangements.
1946 Treaty of Gen. Relations, Art. I: EDCA. Art. II(4):
EDCA, Art. V:
The United States of America agrees to withdraw and "Agreed Locations" means facilities and areas
surrender, and does hereby withdraw andtosurrender, all are provided by the Government of the
1. The Philippines shall retain ownership of and title
rights of possession, supervision, jurisdiction, control or Philippines through the AFP and that United State
Agreed Locations.
sovereignty existing and exercised by the United States of United States contractors, and others as mutually
America in and over the territory and the people of the shall have the right to access and use pursuant to
xxxx
Philippine Islands, except the use of such Agreement. Such Agreed Locations may be listed
bases, necessary appurtenances to such bases, and the to be appended to this Agreement, and may be fur
 nt thereto, as the United States of America, by described in implementing
The Philippines
arrangements.
agrees to permit the United States, upon The Philippines hereby grants to the United
with the Republic of the Philippines may deem notice to the Philippines, to use such of those bases listed States, through bilateral security mechanisms,
to retain for the mutual protection of the Republic in Annex B as the United States determines to be required the MDB and SEB, operational control of Agreed
pines and of the United States of America. x x x. by military necessity. Locations for construction
activities and authority to undertake such activi
1947 MBA, Art. III(1): and make alterations and improvements to, Agree
Third, in EDCA, the Philippines is- guaranteed access over the entire Locations. United States forces shall consult on
area of the Agreed Locations. On the other hand, given that the U.S. regarding such construction, alterations, and
had complete control over its military bases under theIt is1947
mutually
MBA,agreed
the that the United Statesshall have improvements based on the Parties' shared inten
treaty did not provide for any express recognition of the right of accessand authority within the bases which
the rights, power
technical requirements and construction standards
of Philippine authorities. Without that provision and are necessary
in light of the for the establishment, use, operation and such projects undertaken by or on behalf of United
retention of U.S. sovereignty over the old military bases, the thereof
defense or appropriate for the control thereof and
U.S. could forces should be consistent with the requirements
all the rights,
effectively prevent Philippine authorities from entering those bases. power and authority within the limits of
territorial waters and air space adjacent to, or in the standards of both Parties.
vicinity of, the bases which are necessary to provide
1947 MBA access to them, EDCAor appropriate for their control.

nt provision. EDCA, Art. III(5):

Fifth, the U.S. under the bases agreement was given the authority to
use Philippine territory for additional staging areas, bombing and
The Philippine Designated Authority and its authorized
gunnery ranges. No such right is given under EDCA, as seen below:
representative shall have access to the entire area of the
Agreed Locations. Such access shall be provided promptly
consistent with operational safety and security
1947 MBArequirements EDCA
in accordance with agreed procedures developed by the
Parties. 1947 MBA, Art. VI: EDCA, Art. III(1):

Fourth, in the bases agreement, the U.S. retained the Theright,

United States shall, subject to previous agreement with
power, With consideration of the views of the Parties,
and authority over the establishment, use, operation, defense, and have the right to use land and coastal sea
the Philippines, the Philippines hereby authorizes and agrees tha
areaswaters
control of military bases, including the limits of territorial of appropriate
and air size and location for periodic States forces, United States contractors, and vehic
maneuvers,
space adjacent to or in the vicinity of those bases. The only standard for additional staging areas, bombing and vessels, and aircraft operated by or for United Stat
used in determining the extent of its control was military necessity. Onand for such intermediate airfields as
gunnery ranges, may conduct the following activities with respect to
may be required
the other hand, there is no such grant of power or authority under for safe and efficient air operations. Locations: training; transit; support and related act
EDCA. It merely allows the U.S. to exercise operational control in
Operations such areas shall be carried on with due regard
over refueling of aircraft; bunkering of vessels; tempora
and
the construction of Philippine-owned structures and facilities:safeguards for the public safety. maintenance of vehicles, vessels, and aircraft; tem
accommodation of personnel; communications; pre
1947 MBA, Art.I(2): of equipment, supplies, and materiel; deploying for
1947 MBA EDCA materiel; and such other activities as the Parties m
The Philippines agrees to permit the United States, upon
Art.I(2): EDCA, Art. III(4):
notice to the Philippines, to use such of those bases listed
in Annex B as the United States determines to be required

necessity.
Sixth, under the MBA, the U.S. was given the right, power, and
authority to control and prohibit the movement and operation of all
types of vehicles within the vicinity of the bases. The U.S. does not
have any right, power, or authority to do so under EDCA.
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to
use any and all public utilities, services and facilities, airfields, ports,
harbors, roads, highways, railroads, bridges, viaducts, canals, lakes,
rivers, and streams in the Philippines in the same manner that
Philippine military forces enjoyed that right. No such arrangement
appears in EDCA. In fact, it merely extends to U.S. forces temporary
access to public land and facilities when requested:

1947 MBA EDCA 1947 MBA EDCA

Art. 111(2)(c) No equivalent 1947 MBA, Art. VII:

provision. EDCA, Art. III(2):

power and authority shall include, inter It is mutually agreed that the United States may employ and When requested, the Designated Authority of the
ht, power and authority: x x x x to use for United States military forces any and all public shall assist in facilitating transit or temporary ac
luding the right to prohibit) in so far as may be utilities, other services and facilities, airfields, ports, United States forces to public land and facilities (in
the efficient operation and safety of the bases, harbors, roads, highways, railroads, bridges, viaducts, canals, roads, ports, and airfields), including those owned
he limits of military necessity, anchorages, lakes, rivers and streams in the Philippines under conditions controlled by local governments, and to other land
andings, takeoffs, movements and operation no less favorable than those that may be applicablefrom facilities (including roads, ports, and airfields).
d water-borne craft, aircraft and other vehicles time to time to the military forces of the Philippines.
n the air or on land comprising
Ninth, under EDCA, the U.S. no longer has the right, power, and
Seventh, under EDCA, the U.S. is merely given temporary access to authority to construct, install, maintain, and employ any type of facility,
land and facilities (including roads, ports, and airfields). On the other weapon, substance, device, vessel or vehicle, or system unlike in the
hand, the old treaty gave the U.S. the right to improve and deepen the old treaty. EDCA merely grants the U.S., through bilateral security
harbors, channels, entrances, and anchorages; and to construct or mechanisms, the authority to undertake construction, alteration, or
maintain necessary roads and bridges that would afford it access to its improvements on the Philippine-owned Agreed Locations.
military bases.
1947 MBA EDCA
1947 MBA EDCA
1947 MBA, Art. III(2)(e): EDCA, Art. III(4):
Art. III(2)(b): EDCA, Art. III(2):
Such rights, power and authority shall include, inter The Philippines hereby grants to the United State
power and authority shall include, inter When requested, alia,the
theDesignated
right, power and authority:
Authority x x x x to construct,
of the Philippines bilateral security mechanisms, such as the MDB
ht, power and authority: x x x x to improve and install, maintain, and employ
shall assist in facilitating transit or temporary accesson any baseby any operational control of Agreed Locations for constru
harbors, channels, entrances and type of facilities, weapons, substance,
United States forces to public land and facilities (including device, vessel or activities and authority to undertake such activit
s, and to construct or maintain necessary vehicle on or under the ground,
roads, ports, and airfields), including those owned or in the air or on or under the and make alterations and improvements to, Ag
ridges affording access to the bases. water that may be requisite or
controlled by local governments, and to other land andappropriate, including Locations. United States forces shall consult on is
meteorological
facilities (including roads, ports, systems, aerial and water navigation lights,
and airfields). regarding such construction, alterations, and impro
 dar apparatus and electronic devices, of any based on the Parties' shared intent that the 1947
technical
MBA EDCA
er, type of emission and frequency. requirements and construction standards of any such projects
undertaken by1947
or onMBA,
behalfArt. XI(l): States forces should be
of United EDCA, Art. II:
consistent with the requirements and standards of both
Parties. It is mutually agreed that the United States shall have the 1. "United States personnel" means United State
right to bring into the Philippines members of the United and civilian personneltemporarily in the territory o
States military forces and the United States nationals Philippines in connection with activities approved b
Tenth, EDCA does not allow the U.S. to acquire, byemployed
condemnationby ororunder a contract with the United States Philippines, as those terms are defined in the VF
expropriation proceedings, real property belonging to any private
together with their families, and technical personnel of
person. The old military bases agreement gave thisotherright to the U.S. as (not being persons excluded by the laws
nationalities
seen below: x xx x
of the Philippines) in connection with the construction,
maintenance, or operation of the bases. The United States 3. "United States contractors" means companie
1947 MBA shall make suitable
EDCAarrangements so that such persons may and their employees, under contract or subcontrac
be readily identified and their status established when behalf of the United States Department of Defense
Art. XXII(l): No equivalent necessary
provision. by the Philippine authorities. Such persons, other States contractors are not includedas part of
than members of the United States armed forces in uniform, the definition of United States personnel in this
is necessary to acquire by shall present their travel documents to the appropriate Agreement, including within the context of the V
Philippine authorities for visas, it being understood that no
objection will be made to their travel to the Philippines as
ion or expropriation proceedings real property
non-immigrants.
o any private persons, associations or
s located in bases named in Annex A and Annex B
arry out the purposes of this Agreement, the Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over
will institute and prosecute such condemnation or any offense committed by any person within the Agreed Locations,
n proceedings in accordance with the laws of the unlike in the former military bases:
The United States agrees to reimburse the
or all the reasonable expenses, damages and
bv incurred, including the value of the property as 1947 MBA EDCA
by the Court. In addition, subject to the mutual
of the two Governments, the United States will 1947 MBA, Art. XIII(l)(a): No equivalent provision.
he Philippines for the reasonable costs of
on and removal of any occupants displaced or The Philippines consents that the United
eason of the condemnation or expropriation.
States shall have the right to exercise jurisdiction over the
following offenses: (a) Any offense committed by any
Eleventh, EDCA does not allow the U.S. to unilaterallypersonbring into the
within any base except where the offender and
country non-Philippine nationals who are under its employ, together
offended parties are both Philippine citizens (not members of
with their families, in connection with the construction,
the maintenance,
armed forces or of the United States on active duty) or the
operation of the bases. EDCA strictly adheres to theoffense
limits under the the security of the Philippines.
is against
VFA.
 Thirteenth, EDCA does not allow the U.S. to operate military post An appreciation of what a military base is, as understood by the Filipino
exchange (PX) facilities, which is free of customs duties and taxes, people in 1987, would be vital in determining whether EDCA breached
unlike what the expired MBA expressly allowed. Parenthetically, the PX the constitutional restriction.
store has become the cultural icon of U.S. military presence in the
country. Prior to the drafting of the 1987 Constitution, the last definition of
"military base" was provided under Presidential Decree No. (PD)
1227.328 Unlawful entry into a military base is punishable under the
1947 MBA EDCA
decree as supported by Article 281 of the Revised Penal Code, which
itself prohibits the act of trespass.
Art. XVIII(l): No equivalent provision.
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as
y agreed that the United States
used in this decree means any military, air, naval, or coast guard
reservation, base, fort, camp, arsenal, yard, station, or installation in
he right to establish on bases, free of all the Philippines."
ees; sales, excise or other taxes, or
overnment agencies, including concessions,
Commissioner Tadeo, in presenting his objections to U.S. presence in
es commissaries and post exchanges; messes
the Philippines before the 1986 Constitutional Commission, listed the
lubs, for the exclusive use of the United States
areas that he considered as military bases:
ces and authorized civilian personnel and their
he merchandise or services sold or dispensed by
es shall be free of all taxes, duties and 1,000 hectares Camp O'Donnel
by the Philippine authorities. Administrative
hall be taken by the appropriate authorities of the 20,000 hectares Crow Valley Weapon's Range
es to prevent the resale of goods which are sold
ovisions of this Article to persons not entitled to 55,000 hectares Clark Air Base
at such agencies and, generally, to prevent abuse
ges granted under this Article. There shall be 150 hectares Wallace Air Station
between such authorities and the Philippines to
400 hectares John Hay Air Station

In sum, EDCA is a far cry from a basing agreement as was understood 15,000 hectares Subic Naval Base
by the people at the time that the 1987 Constitution was adopted.
1,000 hectares San Miguel Naval Communication
Nevertheless, a comprehensive review of what the Constitution means
by "foreign military bases" and "facilities" is required before EDCA can 750 hectares Radio Transmitter in Capas, Tarlac
be deemed to have passed judicial scrutiny.
900 hectares Radio Bigot Annex at Bamban, Tarlac329
c. The meaning of military facilities and bases
The Bases Conversion and Development Act of 1992 described its
coverage in its Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the
Government to accelerate the sound and balanced conversion into
alternative productive uses of the Clark and Subic military reservations
and their extensions (John Hay Station, Wallace Air Station, O'Donnell
Transmitter Station, San Miguel Naval Communications Station and
Capas Relay Station), to raise funds by the sale of portions of Metro
Manila military camps, and to apply said funds as provided herein for
the development and conversion to productive civilian use of the lands
covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330
The result of the debates and subsequent voting is Section 25, Article
XVIII of the Constitution, which specifically restricts, among
others, foreign military facilities or bases. At the time of its crafting of
the Constitution, the 1986 Constitutional Commission had a clear idea
of what exactly it was restricting. While the term "facilities and bases"
was left undefined, its point of reference was clearly those areas
covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-
evolving world of military technology and geopolitics has surpassed the
understanding of the Philippine people in 1986. The last direct military
action of the U.S. in the region was the use of Subic base as the
staging ground for Desert Shield and Desert Storm during the Gulf
War.331In 1991, the Philippine Senate rejected the successor treaty of
the 1947 MBA that would have allowed the continuation of U.S. bases
in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had
to evolve likewise, taking into consideration the subsisting agreements
between both parties, the rejection of the 1991 proposal, and a
concrete understanding of what was constitutionally restricted. This
trend birthed the VFA which, as discussed, has already been upheld by
this Court.
The latest agreement is EDCA, which proposes a novel concept
termed "Agreed Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United
States contractors, and others as mutually agreed, shall have the right
to access and use pursuant to this Agreement. Such Agreed Locations
may be listed in an annex to be appended to this Agreement, and may
be further described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the
Philippines shall retain ownership of and title to the Agreed Locations
means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within
Philippine territory.333
By this interpretation, respondent acknowledges that the contention of
petitioners springs from an understanding that the Agreed Locations
merely circumvent the constitutional restrictions. Framed differently,
the bone of contention is whether the Agreed Locations are, from a
legal perspective, foreign military facilities or bases. This legal
framework triggers Section 25, Article XVIII, and makes Senate
concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is
authorized by the Philippines to "conduct the following activities:
"training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying forces
and materiel; and such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper
interpretation of the Section 25 restriction.
d. Reasons for the constitutional requirements and legal standards for
constitutionally compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility
or base." While it specifically alludes to U.S. military facilities and
bases that existed during the framing of the Constitution, the provision
was clearly meant to apply to those bases existing at the time and to
any future facility or base. The basis for the restriction must first be
deduced from the spirit of the law, in order to set a standard for the
application of its text, given the particular historical events preceding
the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to
glean, from their collective wisdom, the intent of Section 25. Their
speeches are rich with history and wisdom and present a clear picture
of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the
anti-bases provisions with what purports to be an objective
presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore
the inequity in their inception as well as their implementation, as
to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War
II are quoted in support of the proposition on neutrality; regrettably,
the implication is that the same remains valid today, as if the world and
international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the
presence of the military bases on our sovereignty - whether in its
legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully
sovereign or completely independent. I was not aware that the
concepts of sovereignty and independence have now assumed the
totality principle, such that a willing assumption of some delimitations in
the exercise of some aspects thereof would put that State in a lower
bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros
and cons on the advisability of having military bases within our shores.
Most of us who, only about three months ago, were just mulling the
prospects of these varying contentions are now expected, like armchair
generals, to decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political, social,
economic and cultural impact on our national life. We are asked to
answer a plethora of questions, such as: 1) whether the bases are
magnets of nuclear attack or are deterrents to such attack; 2) whether
an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North
Korea is outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New Zealand; and
4) whether the social, moral and legal problems spawned by the
military bases and their operations can be compensated by the
economic benefits outlined in papers which have been furnished
recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical,
unequivocal and forceful assertions of their positions. They are entitled
to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last"
opportunity for Filipinos to assert their sovereign
rights. Unfortunately, I have never been enchanted by superlatives,
much less for the applause of the moment or the ovation of the hour.
Nor do I look forward to any glorious summer after a winter of political
discontent. Hence, if I may join Commissioner Laurel, I also invoke a
caveat not only against the tyranny of labels but also the tyranny of
slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of
the problem of the removal of foreign bases from the Philippines have
been adequately treated by previous speakers. Let me, therefore, just
recapitulate the arguments adduced in favor of a foreign bases-free
Philippines:
 1. That every nation should be free to shape its own destiny
without outside interference;
2. That no lasting peace and no true sovereignty would ever
be achieved so long as there are foreign military forces in our
country;
3. That the presence of foreign military bases deprives us of
the very substance of national sovereigntyand this is a
constant source of national embarrassment and an insult to our
national dignity and selfrespect as a nation;
4. That these foreign military bases unnecessarily expose
our country to devastating nuclear attacks;
5. That these foreign military bases create social problems and
are designed to perpetuate the strangle-hold of United States
interests in our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign
bases operate to deprive our country of jurisdiction over
civil and criminal offenses committed within our own national
territory and against Filipinos;
7. That the bases agreements are colonial impositions and
dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all
the bases agreements are null and void ab initio, especially
because they did not count the sovereign consent and will of
the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could
accommodate the provisions I have cited, what is our objection to
include in our Constitution a matter as priceless as the nationalist
values we cherish? A matter of the gravest concern for the safety
and survival of this nation indeed deserves a place in our
Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-
respect as a nation and the future of generations to come with thirty
pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons
wherever they are found and whoever owns them is that those are for
killing people or for terrorizing humanity. This objective by itself at
any point in history is morally repugnant. This alone is reason enough
for us to constitutionalize the ban on foreign military bases and on
nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be
primarily to remove the bases because even if the bases are
removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily
elsewhere - in an alert and concerned citizenry, a healthy economy
and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign
military bases here is that they impair portions of our
sovereignty. While I agree that our country's sovereignty should not
be impaired, I also hold the view that there are times when it is
necessary to do so according to the imperatives of national interest.
There are precedents to this effect. Thus, during World War II, England
leased its bases in the West Indies and in Bermuda for 99 years to the
United States for its use as naval and air bases. It was done in
consideration of 50 overaged destroyers which the United States gave
to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the
United States for the latter's use as a naval base in the Indian Ocean.
About the same time, the United States obtained bases in Spain, Egypt
and Israel. In doing so, these countries, in effect, contributed to the
launching of a preventive defense posture against possible trouble in
the Middle East and in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations,
the presence of American troops in the country is a projection of
America's security interest. Enrile said that nonetheless, they also
serve, although in an incidental and secondary way, the security
interest of the Republic of the Philippines and the region. Yes, of
course, Mr. Enrile also echoes the sentiments of most of us in this
Commission, namely: It is ideal for us as an independent and
sovereign nation to ultimately abrogate the RP-US military treaty
and, at the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of
American military bases in the Philippines provided that such an
extension from one period to another shall be concluded upon
concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and
the United States and their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with
this task of framing a constitution, I read a statement of President
Aquino to the effect that she is for the removal of the U.S. military
bases in this country but that the removal of the U.S. military bases
should not be done just to give way to other foreign bases. Today,
there are two world superpowers, both vying to control any and all
countries which have importance to their strategy for world domination.
The Philippines is one such country.
Madam President, I submit that I am one of those ready to
completely remove any vestiges of the days of enslavement, but
not prepared to erase them if to do so would merely leave a vacuum to
be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our
brethren in the Middle East, in Indo-China, Central America, in South
Africa - there has been escalation of war in some of these areas
because of foreign intervention which views these conflicts through the
narrow prism of the East-West conflict. The United States bases have
been used as springboards for intervention in some of these
conflicts. We should not allow ourselves to be party to the warlike
mentality of these foreign interventionists. We must always be on
the side of peace – this means that we should not always rely on
military solution.352
xxxx
x x x The United States bases, therefore, are springboards for
intervention in our own internal affairs and in the affairs of other
nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its
fundamental freedoms which should logically be declared in black and
white in our fundamental law of the land - the Constitution. Let us
express our desire for national sovereignty so we may be able to
achieve national self-determination. Let us express our desire for
neutrality so that we may be able to follow active nonaligned
independent foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and tranquil
existence, to have peace that is autonomous and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military
bases? Para sa magbubukid, ang kahulugan nito ay
pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military
bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na
nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin
ng U.S. military bases ay batong pabigat na patuloy na pinapasan
ng sambayanang Pilipino. Para sa sambayanang magbubukid, ang
pananatili ng U.S. military bases ay isang nagdudumilat na
katotohanan ng patuloy na paggahasa ng imperyalistang Estados
Unidos sa ating Inang Bayan - economically, politically and
culturally. Para sa sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay
magneto ng isang nuclear war. Para sa sambayanang
magbubukid, ang kahulugan ng U.S. military bases ay isang
salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the
instruments of domination and subservience has clearly been
defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my
support for the committee's position to enshrine in the Constitution a
fundamental principle forbidding foreign military bases, troops or
facilities in any part of the Philippine territory as a clear and concrete
manifestation of our inherent right to national self-determination,
independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of
genuine nationhood to the social cost of allowing foreign countries to
maintain military bases in our country. Previous speakers have dwelt
on this subject, either to highlight its importance in relation to the other
issues or to gloss over its significance and !llake this a part of future
negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of
the solutions and is the response of the Filipino people against this
condition and other conditions that have already been clearly and
emphatically discussed in past deliberations. The deletion, therefore, of
Section 3 in the Constitution we are drafting will have the following
implications:
First, the failure of the Constitutional Commission to decisively respond
to the continuing violation of our territorial integrity via the
military bases agreement which permits the retention of U.S.
facilities within the Philippine soil over which our authorities have
no exclusive jurisdiction contrary to the accepted definition of the
exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to
an exception in the application of a provision in the Bill of
Rights that we have just drafted regarding equal application of the
laws of the land to all inhabitants, permanent or otherwise, within its
territorial boundaries.
Third, the continued exercise by the United States of
extraterritoriality despite the condemnations of such practice by the
world community of nations in the light of overwhelming international
approval of eradicating all vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic
sovereignty, in the hope that such can be wielded to force the United
States government to concede to better terms and conditions
concerning the military bases agreement, including the transfer of
complete control to the Philippine government of
the U.S. facilities, while in the meantime we have to suffer all existing
indignities and disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign
military bases as essentially a question of sovereignty which does
not require in-depth studies or analyses and which this forum has, as a
constituent assembly drafting a constitution, the expertise and capacity
to decide on except that it lacks the political will that brought it to
existence and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if
we reclaim, restore, uphold and defend our national
sovereignty. National sovereignty is what the military bases issue
is all about. It is only the sovereign people exercising their national
sovereignty who can design an independent course and take full
control of their national destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report,
specifically Sections 3 and 4 on neutrality, nuclear and bases-free
country, some views stress sovereignty of the Republic and even
invoke survival of the Filipino nation and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of
the committee report to dismantle the American bases after 1991 only
show the urgent need to free our country from the entangling
alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess
expertise to know that the so-called RP-US Bases Agreement will
expire in 1991, that it infringes on our sovereignty and jurisdiction
as well as national dignity and honor, that it goes against the UN policy
of disarmament and that it constitutes unjust intervention in our
internal affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign
military bases, troops, or facilities, subject to the provisions of Section
25. It is thus important to read its discussions carefully. From these
discussions, we can deduce three legal standards that were articulated
by the Constitutional Commission Members. These are characteristics
of any agreement that the country, and by extension this Court, must
ensure are observed. We can thereby determine whether a military
base or facility in the Philippines, which houses or is accessed by
foreign military troops, is foreign or remains a Philippine military base
or facility. The legal standards we find applicable are: independence
from foreign control, sovereignty and applicable law, and national
security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution's drafting was aimed at asserting Philippine independence
from the U.S., as well as control over our country's territory and
military.
Under the Civil Code, there are several aspects of control exercised
over property.
Property is classified as private or public.365 It is public if "intended for
public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of
similar character[,]" or "[t]hose which belong to the State, without being
for public use, and are intended for some public service or for the
development of the national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for
public use, be it within a government military camp or property that
belongs to the Philippines. 1av vphi1
Once ownership is established, then the rights of ownership flow freely.
Article 428 of the Civil Code provides that "[t]he owner has the right to
enjoy and dispose of a thing, without other limitations than those
established by law." Moreover, the owner "has also a right of action
against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of
property, even against those who hold the property. Possession, after
all, merely raises a disputable presumption of ownership, which can be
contested through normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed
Locations remains with the Philippine govemment.368 What U.S.
personnel have a right to, pending mutual agreement, is access to and
use of these locations.369
The right of the owner of the property to allow access and use is
consistent with the Civil Code, since the owner may dispose of the
property in whatever way deemed fit, subject to the limits of the law. So
long as the right of ownership itself is not transferred, then whatever
rights are transmitted by agreement does not completely divest the
owner of the rights over the property, but may only limit them in
accordance with law.
Hence, even control over the property is something that an owner may
transmit freely. This act does not translate into the full transfer of
ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we
stated that the constitutional proscription on property ownership is not
violated despite the foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a
contract of use and access. Under its pertinent provisions, it is the
Designated Authority of the Philippines that shall, when requested,
assist in facilitating transit or access to public land and facilities.371 The
activities carried out within these locations are subject to agreement as
authorized by the Philippine govemment.372 Granting the U.S.
operational control over these locations is likewise subject to EDCA' s
security mechanisms, which are bilateral procedures involving
Philippine consent and cooperation.373 Finally, the Philippine
Designated Authority or a duly designated representative is given
access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control,
which was so feared by the Constitutional Commission. In fact, they
seem to have been the product of deliberate negotiation from the point
of view of the Philippine government, which balanced constitutional
restrictions on foreign military bases and facilities against the security
needs of the country. In the 1947 MBA, the U.S. forces had "the right,
power and authority x x x to construct (including dredging and filling),
operate, maintain, utilize, occupy, garrison and control the bases."375 No
similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military
facilities and bases has been raised by the present Constitution.
Section 25 is explicit that foreign military bases, troops, or facilities
shall not be allowed in the Philippines, except under a treaty duly
concurred in by the Senate. Merely stating that the Philippines would
retain ownership would do violence to the constitutional requirement if
the Agreed Locations were simply to become a less obvious
manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the
Constitution, the committee rejected a specific provision proposed by
Commissioner Sarmiento. The discussion illuminates and provides
context to the 1986 Constitutional Commission's vision of control and
independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads
as follows: "THE STATE SHALL ESTABLISH AND MAINTAIN AN
INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES." Allow me to briefly explain, Madam President. The
Armed Forces of the Philippines is a vital component of Philippine
society depending upon its training, orientation and support. It will
either be the people's protector or a staunch supporter of a usurper or
tyrant, local and foreign interest. The Armed Forces of the
Philippines' past and recent experience shows it has never been
independent and self-reliant. Facts, data and statistics will show that
it has been substantially dependent upon a foreign power. In March
1968, Congressman Barbero, himself a member of the Armed Forces
of the Philippines, revealed top secret documents showing what he
described as U.S. dictation over the affairs of the Armed Forces of the
Philippines. He showed that under existing arrangements, the
United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would
have, but also the time when these items are to be made available
to us. It is clear, as he pointed out, that the composition,
capability and schedule of development of the Armed Forces of
the Philippines is under the effective control of the U.S.
government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the
1987 Constitution that would assert "independent" and "self-reliant"
armed forces. This proposal was rejected by the committee,
however. As Commissioner De Castro asserted, the involvement
of the Philippine military with the U.S. did not, by itself, rob the
Philippines of its real independence. He made reference to the
context of the times: that the limited resources of the Philippines and
the current insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in any way
control the Philippine military despite this relationship and the fact that
the former would furnish military hardware or extend military assistance
and training to our military. Rather, he claimed that the proposal was in
compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on
U.S. military bases on 12 September 1986, I spoke on the selfreliance
policy of the armed forces. However, due to very limited resources, the
only thing we could do is manufacture small arms ammunition. We
cannot blame the armed forces. We have to blame the whole Republic
of the Philippines for failure to provide the necessary funds to make the
Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency
case, a rebellion in our country - insurgency - and with very limited
funds and very limited number of men, it will be quite impossible for the
Philippines to appropriate the necessary funds therefor. However, if
we say that the U.S. government is furnishing us the military
hardware, it is not control of our armed forces or of our
government. It is in compliance with the Mutual Defense Treaty. It
is under the military assistance program that it becomes the
responsibility of the United States to furnish us the necessary hardware
in connection with the military bases agreement. Please be informed
that there are three (3) treaties connected with the military bases
agreement; namely: the RP-US Military Bases Agreement, the Mutual
Defense Treaty and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are
furnished the military hardware pursuant to that treaty, it is not in
control of our armed forces nor control of our government. True
indeed, we have military officers trained in the U.S. armed forces
school. This is part of our Military Assistance Program, but it does not
mean that the minds of our military officers are for the U.S.
government, no. I am one of those who took four courses in the United
States schools, but I assure you, my mind is for the Filipino people.
Also, while we are sending military officers to train or to study in U.S.
military schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it does
not mean that when we send military officers to United States schools
or to other military schools, we will be under the control of that country.
We also have foreign officers in our schools, we in the Command and
General Staff College in Fort Bonifacio and in our National Defense
College, also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled
that independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent
national economy" does not necessarily rule out the entry of
foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community."
As explained by Constitutional Commissioner Bernardo Villegas,
sponsor of this constitutional policy:
Economic self reliance is a primary objective of a developing country
that is keenly aware of overdependence on external assistance for
even its most basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public
utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities
and bases is therefore the assertion of independence from the U.S.
and other foreign powers, as independence is exhibited by the degree
of foreign control exerted over these areas. The essence of that
1âwphi1
independence is self-governance and self-control.379 Independence
itself is "[t]he state or condition of being free from dependence,
subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and
authority over Philippine facilities and locations, such that the
agreement effectively violates Section 25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as
necessary for "operational control and defense." The term "operational
control" has led petitioners to regard U.S. control over the Agreed
Locations as unqualified and, therefore, total.382 Petitioners contend that
the word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate measure to
protect United States forces and United States contractors. The United
States should coordinate such measures with appropriate authorities of
the Philippines.
A basic textual construction would show that the word "their," as
understood above, is a possessive pronoun for the subject "they," a
third-person personal pronoun in plural form. Thus, "their" cannot be
used for a non-personal subject such as "Agreed Locations." The
simple grammatical conclusion is that "their" refers to the previous
third-person plural noun, which is "United States forces." This
conclusion is in line with the definition of operational control.
a. U.S. operational control as the exercise of authority over U.S.
personnel, and not over the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a
military term referring to
[t]he authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces,
assigning tasks, designating objective, and giving authoritative
direction necessary to accomplish the mission.383
At times, though, operational control can mean something slightly
different. In JUSMAG Philippines v. National Labor Relations
Commission, the Memorandum of Agreement between the AFP and
JUSMAG Philippines defined the term as follows:384
The term "Operational Control" includes, but is not limited to, all
personnel administrative actions, such as: hiring recommendations;
firing recommendations; position classification; discipline; nomination
and approval of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel
control. Philippine law, for instance, deems operational control as one
exercised by police officers and civilian authorities over their
subordinates and is distinct from the administrative control that they
also exercise over police subordinates.385 Similarly, a municipal mayor
exercises operational control over the police within the municipal
government,386 just as city mayor possesses the same power over the
police within the city government.387
Thus, the legal concept of operational control involves authority over
personnel in a commander-subordinate relationship and does not
include control over the Agreed Locations in this particular case.
Though not necessarily stated in EDCA provisions, this interpretation is
readily implied by the reference to the taking of "appropriate measures
to protect United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational
control over its own forces, in much the same way that the Philippines
exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned
and pre-approved by the MDB-SEB.388 This provision evinces the
partnership aspect of EDCA, such that both stakeholders have a say
on how its provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over
personnel, qualifying access to the Agreed Locations by the Philippine
Designated Authority with the phrase "consistent with operational
safety and security requirements in accordance with agreed
procedures developed by the Parties" leads to the conclusion that the
U.S. exercises effective control over the Agreed Locations.389 They
claim that if the Philippines exercises possession of and control over a
given area, its representative should not have to be authorized by a
special provision.390
For these reasons, petitioners argue that the "operational control" in
EDCA is the "effective command and control" in the 1947 MBA.391 In
their Memorandum, they distinguish effective command and control
from operational control in U.S. parlance.392 Citing the Doctrine for the
Armed Forces of the United States, Joint Publication 1, "command and
control (C2)" is defined as "the exercise of authority and direction by a
properly designated commander over assigned and attached forces in
the accomplishment of the mission x x x."393 Operational control, on the
other hand, refers to "[t]hose functions of command over assigned
forces involving the composition of subordinate forces, the assignment
of tasks, the designation of objectives, the overall control of assigned
resources, and the full authoritative direction necessary to accomplish
the mission."394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security
requirements in accordance with agreed procedures developed by the
Parties" does not add any qualification beyond that which is already
imposed by existing treaties. To recall, EDCA is based upon prior
treaties, namely the VFA and the MDT.395 Treaties are in themselves
contracts from which rights and obligations may be claimed or
waived.396 In this particular case, the Philippines has already agreed to
abide by the security mechanisms that have long been in place
between the U.S. and the Philippines based on the implementation of
their treaty relations.397
Secondly, the full document cited by petitioners contradicts the
equation of "operational control" with "effective command and control,"
since it defines the terms quite differently, viz:398
Command and control encompasses the exercise of authority,
responsibility, and direction by a commander over assigned and
attached forces to accomplish the mission. Command at all levels is
the art of motivating and directing people and organizations into action
to accomplish missions. Control is inherent in command. To control is
to manage and direct forces and functions consistent with a
commander's command authority. Control of forces and functions helps
commanders and staffs compute requirements, allocate means, and
integrate efforts. Mission command is the preferred method of
exercising C2. A complete discussion of tenets, organization, and
processes for effective C2 is provided in Section B, "Command and
Control of Joint Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM.
It is the authority to perform those functions of command over
subordinate forces involving organizing and employing commands and
forces, assigning tasks, designating objectives, and giving authoritative
direction over all aspects of military operations and joint training
necessary to accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations; normally,
this authority is exercised through subordinate JFCs, Service, and/or
functional component commanders. OPCON provides authority to
organize and employ commands and forces as the commander
considers necessary to accomplish assigned missions. It does not
include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of
COCOM must be specifically delegated by the CCDR. OPCON does
include the authority to delineate functional responsibilities and
operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant
command, while command and control is the overall power and
responsibility exercised by the commander with reference to a mission.
Operational control is a narrower power and must be given, while
command and control is plenary and vested in a commander.
Operational control does not include the planning, programming,
budgeting, and execution process input; the assignment of subordinate
commanders; the building of relationships with Department of Defense
agencies; or the directive authority for logistics, whereas these factors
are included in the concept of command and control.400
This distinction, found in the same document cited by petitioners,
destroys the very foundation of the arguments they have built: that
EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for
construction activitites
As petitioners assert, EDCA indeed contains a specific provision that
gives to the U.S. operational control within the Agreed Locations during
construction activities.401 This exercise of operational control is
premised upon the approval by the MDB and the SEB of the
construction activity through consultation and mutual agreement on the
requirements and standards of the construction, alteration, or
improvement.402
Despite this grant of operational control to the U.S., it must be
emphasized that the grant is only for construction activities. The narrow
and limited instance wherein the U.S. is given operational control within
an Agreed Location cannot be equated with foreign military control,
which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction
activities, operational control over the Agreed Location is vested in the
Philippine authorities. This meaning is implicit in the specific grant of
operational control only during construction activities. The principle of
constitutional construction, "expressio unius est exclusio
alterius," means the failure to mention the thing becomes the ground
for inferring that it was deliberately excluded.403Following this
construction, since EDCA mentions the existence of U.S. operational
control over the Agreed Locations for construction activities, then it is
quite logical to conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the
commissioners was total control, to the point that the foreign military
forces might dictate the terms of their acts within the
Philippines.404 More important, limited control does not mean an
abdication or derogation of Philippine sovereignty and legal jurisdiction
over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents,405 which is a
waiver of control on a limited scale and subject to the terms of the
treaty.
This point leads us to the second standard envisioned by the framers
of the Constitution: that the Philippines must retain sovereignty and
jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States
not to establish a permanent military presence or base in the territory
of the Philippines." Further on, it likewise states the recognition that "all
United States access to and use of facilities and areas will be at the
invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must
be seen in light of Philippine sovereignty and jurisdiction over the
Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is
the conferment by law of power and authority to apply the law.407 Article
I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the
Philippines that the U.S. forces are allowed to access and use.408 By
withholding ownership of these areas and retaining unrestricted access
to them, the government asserts sovereignty over its territory. That
sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security
with respect to the Agreed Locations.410Hence, Philippine law remains
in force therein, and it cannot be said that jurisdiction has been
transferred to the U.S. Even the previously discussed necessary
measures for operational control and defense over U.S. forces must be
coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal
regime of the MBA, Philippine laws continue to be in force within the
bases.412 The difference between then and now is that EDCA retains
the primary jurisdiction of the Philippines over the security of the
Agreed Locations, an important provision that gives it actual control
over those locations. Previously, it was the provost marshal of the U.S.
who kept the peace and enforced Philippine law in the bases. In this
instance, Philippine forces act as peace officers, in stark contrast to the
1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on
the Agreed Locations must not impair or threaten the national security
and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of
technology has essentially rendered the prior notion of permanent
military bases obsolete.
Moreover, military bases established within the territory of another
state is no longer viable because of the alternatives offered by new
means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their home country.
These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel
and facilities. Besides, vessels are mobile as compared to a land-
based military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited
scope. It does not allow, for instance, the re-establishment of the Subic
military base or the Clark Air Field as U.S. military reservations. In this
context, therefore, this Court has interpreted the restrictions on foreign
bases, troops, or facilities as three independent restrictions. In accord
with this interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define
what a military base is.415 While the source is not authoritative,
petitioners make the point that the Agreed Locations, by granting
access and use to U.S. forces and contractors, are U.S. bases under a
different name.416 More important, they claim that the Agreed Locations
invite instances of attack on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in
the realm of law, but of politics and policy. At the very least, we can say
that under international law, EDCA does not provide a legal basis for a
justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed
Locations simply because of the presence of U.S. personnel. Article
2(4) of the United Nations Charter states that "All Members shall refrain
in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations."418 Any
unlawful attack on the Philippines breaches the treaty, and triggers
Article 51 of the same charter, which guarantees the inherent right of
individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question,
international humanitarian law standards prevent participants in an
armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to
armed conflict, expressly limits allowable military conduct exhibited by
forces of a participant in an armed conflict.419 Under this legal regime,
participants to an armed conflict are held to specific standards of
conduct that require them to distinguish between combatants and non-
combatants,420 as embodied by the Geneva Conventions and their
Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of
international law at the University of Leicester, noted that there is no
legal consensus for what constitutes a base, as opposed to other terms
such as "facilities" or "installation."422 In strategic literature, "base" is
defined as an installation "over which the user State has a right to
exclusive control in an extraterritorial sense."423 Since this definition
would exclude most foreign military installations, a more important
distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of
"base" is one that does not fulfill a combat role. He cites an example of
the use of the territory of a state for training purposes, such as to
obtain experience in local geography and climactic conditions or to
carry out joint exercises.424 Another example given is an advanced
communications technology installation for purposes of information
gathering and communication.425 Unsurprisingly, he deems these non-
combat uses as borderline situations that would be excluded from the
functional understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a
building or person is presumed to be protected, unless proven
otherwise.427 Moreover, the principle of distinction requires combatants
in an armed conflict to distinguish between lawful targets428 and
protected targets.429 In an actual armed conflict between the U.S. and a
third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not
change.430
Hence, any armed attack by forces of a third state against an Agreed
Location can only be legitimate under international humanitarian law if
it is against a bona fide U.S. military base, facility, or installation that
directly contributes to the military effort of the U.S. Moreover, the third
state's forces must take all measures to ensure that they have
complied with the principle of distinction (between combatants and
non-combatants).
There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and national
security in the event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared by petitioners -
one in which the Philippines, while not participating in an armed
conflict, would be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of
allowing the presence of U.S. personnel within our territory and is
therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed"
locations, areas, or facilities within the military base of another
sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense
cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation
Agreement436
In all of these arrangements, the host state grants U.S. forces access
to their military bases.437 That access is without rental or similar costs to
the U.S.438 Further, U.S. forces are allowed to undertake construction
activities in, and make alterations and improvements to, the agreed
locations, facilities, or areas.439 As in EDCA, the host states retain
ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific
military-related rights to the U.S. For example, under Article IV(l) of
the US.-Bulgaria Defense Cooperation Agreement, "the United States
forces x x x are authorized access to and may use agreed facilities and
areas x x x for staging and deploying of forces and materiel, with the
purpose of conducting x x x contingency operations and other
missions, including those undertaken in the framework of the North
Atlantic Treaty." In some of these agreements, host countries allow
U.S. forces to construct facilities for the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is
nothing new. In Lim v. Executive Secretary, the Court already upheld
the Terms of Reference of Balikatan 02-1, which authorized U.S.
forces to set up "[t]emporary structures such as those for troop
billeting, classroom instruction and messing x x x during the Exercise."
Similar provisions are also in the Mutual Logistics Support Agreement
of 2002 and 2007, which are essentially executive agreements that
implement the VFA, the MDT, and the 1953 Military Assistance
Agreement. These executive agreements similarly tackle the
"reciprocal provision of logistic support, supplies, and
services,"442 which include "[b ]illeting, x x x operations support (and
construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an
approved activity."443 These logistic supplies, support, and services
include temporary use of "nonlethal items of military equipment which
are not designated as significant military equipment on the U.S.
Munitions List, during an approved activity."444 The first Mutual Logistics
Support Agreement has lapsed, while the second one has been
extended until 2017 without any formal objection before this Court from
the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous
to those in the aforementioned executive agreements. Instead of
authorizing the building of temporary structures as previous
agreements have done, EDCA authorizes the U.S. to build permanent
structures or alter or improve existing ones for, and to be owned by,
the Philippines.445 EDCA is clear that the Philippines retains ownership
of altered or improved facilities and newly constructed permanent or
non-relocatable structures.446 Under EDCA, U.S. forces will also be
allowed to use facilities and areas for "training; x x x; support and
related activities; x x x; temporary accommodation of personnel;
communications" and agreed activities.447
Concerns on national security problems that arise from foreign military
equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the
VFA already authorizes the U.S. to import into or acquire in the
Philippines "equipment, materials, supplies, and other property" that
will be used "in connection with activities" contemplated therein. The
same section also recognizes that "[t]itle to such property shall remain"
with the US and that they have the discretion to "remove such property
from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies, and
materiel,"448 since these are sanctioned in the VFA. In fact, the two
countries have already entered into various implementing agreements
in the past that are comparable to the present one. The Balikatan 02-
1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces "may
share x x x in the use of their resources, equipment and other assets."
Both the 2002 and 2007 Mutual Logistics Support Agreements speak
of the provision of support and services, including the "construction and
use of temporary structures incident to operations support" and
"storage services" during approved activities.449 These logistic supplies,
support, and services include the "temporary use of x x x nonlethal
items of military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an approved
activity."450Those activities include "combined exercises and training,
operations and other deployments" and "cooperative efforts, such as
humanitarian assistance, disaster relief and rescue operations, and
maritime anti-pollution operations" within or outside Philippine
territory.451 Under EDCA, the equipment, supplies, and materiel that will
be prepositioned at Agreed Locations include "humanitarian assistance
and disaster relief equipment, supplies, and materiel. "452 Nuclear
weapons are specifically excluded from the materiel that will be
prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it
increases the threat to our national security. If anything, EDCA
increases the likelihood that, in an event requiring a defensive
response, the Philippines will be prepared alongside the U.S. to defend
its islands and insure its territorial integrity pursuant to a relationship
built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the
MDT only refers to mutual help and defense in the Pacific area.453 We
believe that any discussion of the activities to be undertaken under
EDCA vis-a-vis the defense of areas beyond the Pacific is premature.
We note that a proper petition on that issue must be filed before we
rule thereon. We also note that none of the petitions or memoranda
has attempted to discuss this issue, except only to theorize that the
U.S. will not come to our aid in the event of an attack outside of the
Pacific. This is a matter of policy and is beyond the scope of this
judicial review.
In reference to the issue on telecommunications, suffice it to say that
the initial impression of the facility adverted to does appear to be one
of those that require a public franchise by way of congressional action
under Section 11, Article XII of the Constitution. As respondents
submit, however, the system referred to in the agreement does not
provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and not the
public in general, and that this system will not interfere with that which
local operators use. Consequently, a public franchise is no longer
necessary.
Additionally, the charge that EDCA allows nuclear weapons within
Philippine territory is entirely speculative. It is noteworthy that the
agreement in fact specifies that the prepositioned materiel shall not
include nuclear weapons.455Petitioners argue that only prepositioned
nuclear weapons are prohibited by EDCA; and that, therefore, the U.S.
would insidiously bring nuclear weapons to Philippine territory.456 The
general prohibition on nuclear weapons, whether prepositioned or not,
is already expressed in the 1987 Constitution.457 It would be
unnecessary or superfluous to include all prohibitions already in the
Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which
under the law must originate from Congress. This allegation ignores
jurisprudence on the government's assumption of tax liability. EDCA
simply states that the taxes on the use of water, electricity, and public
utilities are for the account of the Philippine Government.458 This
provision creates a situation in which a contracting party assumes the
tax liability of the other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable
stipulations on the assumption of tax liability. Afterwards, we concluded
that an enforceable assumption of tax liability requires the party
assuming the liability to have actual interest in the property
taxed.460 This rule applies to EDCA, since the Philippine Government
stands to benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces, disaster
preparation, and the preferential use of Philippine suppliers.461 Hence,
the provision on the assumption of tax liability does not constitute a tax
exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to
provisions already sufficiently addressed above. This Court takes this
occasion to emphasize that the agreement has been construed herein
as to absolutely disauthorize the violation of the Constitution or any
applicable statute. On the contrary, the applicability of Philippine law is
explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously
protested by noted personalities in Philippine history arises not so
much from xenophobia, but from a genuine desire for self-
determination, nationalism, and above all a commitment to ensure the
independence of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of
the Philippines of his Constitutional prerogatives in respect of foreign
affairs. They cannot cripple him when he deems that additional security
measures are made necessary by the times. As it stands, the
Philippines through the Department of Foreign Affairs has filed several
diplomatic protests against the actions of the People's Republic of
China in the West Philippine Sea;462 initiated arbitration against that
country under the United Nations Convention on the Law of the
Sea;463 is in the process of negotiations with the Moro Islamic Liberation
Front for peace in Southern Philippines,464 which is the subject of a
current case before this Court; and faces increasing incidents of
kidnappings of Filipinos and foreigners allegedly by the Abu Sayyaf or
the New People's Army.465 The Philippine military is conducting reforms
that seek to ensure the security and safety of the nation in the years to
come.466 In the future, the Philippines must navigate a world in which
armed forces fight with increasing sophistication in both strategy and
technology, while employing asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the

backlash of Mother Nature. The Philippines is one of the countries
most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical
cyclone Yolanda (internationally named Haiyan), one of the most
devastating forces of nature the world has ever seen hit the Philippines
on 8 November 2013 and killed at least 6,000 people.467 This
necessitated a massive rehabilitation project.468 In the aftermath, the
U.S. military was among the first to extend help and support to the
Philippines.

That calamity brought out the best in the Filipinos as thousands upon
thousands volunteered their help, their wealth, and their prayers to
those affected. It also brought to the fore the value of having friends in
the international community.

In order to keep the peace in its archipelago in this region of the world,
and to sustain itself at the same time against the destructive forces of
nature, the Philippines will need friends. Who they are, and what form
the friendships will take, are for the President to decide. The only
restriction is what the Constitution itself expressly prohibits. It appears
that this overarching concern for balancing constitutional requirements
against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement,

it remains consistent with existing laws and treaties that it purports to
implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

G.R. No. 204605
INTELLECTUAL PROPERTY ASSOCIATION OF THE
PHILIPPINES, Petitioner,
vs.
HON. PAQUITO OCHOA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERT DEL ROSARIO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, AND
HON. RICARDO BLANCAFLOR, IN HIS CAPACITY AS THE
DIRECTOR GENERAL OF THE INTELLECTUAL PROPERTY
OFFICE OF THE PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
In this special civil action for certiorari and prohibition, the Intellectual
Property Association of the Philippines (IPAP) seeks to declare the
accession of the Philippines to the Protocol Relating to the Madrid
Agreement Concerning the International Registration of Marks (Madrid
Protocol) unconstitutional on the ground of the lack of concurrence by
the Senate, and in the alternative, to declare the implementation
thereof as unconstitutional because it conflicts with Republic Act No.
8293, otherwise known as the Intellectual Property Code of the
Philippines (IP Code).1
We find and declare that the President's ratification is valid and
constitutional because the Madrid Protocol, being an executive
agreement as determined by the Department of Foreign Affairs, does
not require the concurrence of the Senate.
Antecedents
The Madrid System for the International Registration of Marks (Madrid
System), which is the centralized system providing a one-stop solution
for registering and managing marks worldwide, allows the trademark
owner to file one application in one language, and to pay one set of
fees to protect his mark in the territories of up to 97 member-
states.2 The Madrid System is governed by the Madrid
Agreement, concluded in 1891, and the Madrid Protocol, concluded in
1989.3
The Madrid Protocol, which was adopted in order to remove the
challenges deterring some countries from acceding to the Madrid
Agreement, has two objectives, namely: (1) to facilitate securing
protection for marks; and (2) to make the management of the
registered marks easier in different countries.4
In 2004; the Intellectual Property Office of the Philippines (IPOPHL),
the government agency mandated to administer the intellectual
property system of the country and to implement the state policies on
intellectual property; began considering the country's accession to
the Madrid Protocol. However, based on its assessment in 2005, the
IPOPHL needed to first improve its own operations before making the
recommendation in favor of accession. The IPOPHL thus implemented
reforms to eliminate trademark backlogs and to reduce the turnaround
time for the registration of marks.5
In the meanwhile, the IPOPHL mounted a campaign for information
dissemination to raise awareness of the Madrid Protocol. It launched a
series of consultations with stakeholders and various business groups
regarding the Philippines' accession to the Madrid Protocol. It
ultimately arrived at the conclusion that accession would benefit the
country and help raise the level of competitiveness for Filipino brands.
Hence, it recommended in September 2011 to the Department of
Foreign Affairs (DFA) that the Philippines should accede to the Madrid
Protocol.6
After its own review, the DFA endorsed to the President the country's
accession to the Madrid Protocol. Conformably with its express
authority under Section 9 of Executive Order No. 459 (Providing for the
Guidelines in the Negotiation of International Agreements and its
Ratification) dated November 25, 1997, the DFA determined that
the Madrid Protocol was an executive agreement. The IPOPHL, the
1âw phi 1
Department of Science and Technology, and the Department of Trade
and Industry concurred in the recommendation of the DFA.7
On March 27, 2012, President Benigno C. Aquino III ratified the Madrid
Protocol through an instrument of accession, The instrument of
accession was deposited with the Director General of the World
Intellectual Property Organization (WIPO) on April 25,
2012.8 The Madrid Protocol entered into force in the Philippines on July
25, 2012.9
Petitioner IP AP, an association of more than 100 law firms and
individual practitioners in Intellectual Property Law whose main
objective is to promote and protect intellectual property rights in the
Philippines through constant assistance and involvement in the
legislation of intellectual property law,10 has commenced this special
civil action for certiorari and prohibition11 to challenge the validity of the
President's accession to the Madrid Protocol without the concurrence
of the Senate. Citing Pimentel, Jr. v. Office of the Executive
Secretary, the IPAP has averred:
Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that "no treaty or
international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate." The 1935 and
the 1973 Constitution also required the concurrence by the legislature
to the treaties entered into by the executive.12
According to the IPAP, the Madrid Protocol is a treaty, not an executive
agreement; hence, respondent DFA Secretary Albert Del Rosario
acted with grave abuse of discretion in determining the Madrid
Protocol as an executive agreement.13
The IPAP has argued that the implementation of the Madrid Protocol in
the Philippines; specifically the processing of foreign trademark
applications, conflicts with the IP Code,14 whose Section 125 states:
Sec. 125. Representation; Address for Service. - If the applicant is
not domiciled or has no real and effective commercial establishment in
the Philippines; he shall designate by a written document filed in the
office, the name and address of a Philippine resident who may be
served notices or process in proceedings affecting the mark. Such
notices or services may be served upon the person so designated by
leaving a copy thereof at the address specified in the last designation
filed. If the person so designated cannot be found at the address given
in the last designation, such notice or process may be served upon the
Director. (Sec. 3; R.A. No. 166 a)
It has posited that Article 2 of the Madrid Protocol provides in contrast:
Article 2
Securing Protection through International Registration
(1) Where an application for the registration of a mark has been filed
with the Office of a Contracting Party, or where a mark has been
registered in the register of the Office of a Contracting Party, the
person in whose name that application (hereinafter referred to as "the
basic application;') or that registration (hereinafter referred to as "the
basic registration") stands may, subject to the provisions of this
Protocol secure protection for his mark in the territory of the
Contracting Parties, by obtaining the registration of that mark in the
register of the International Bureau of the World Intellectual Property
Organization (hereinafter referred to as "the international registration,"
"the International Register," "the International Bureau" and "the
Organization'', respectively), provided that,
(i) where the basic application has been filed with the Office of a
Contracting State or where the basic registration has been made by
such an Office, the person in whose name that application or
registration stands is a national of that Contracting State, or is
domiciled, or has a real and effective industrial or commercial
establishment, in the said Contracting State,
(ii) where the basic application has been filed with the Office of a
Contracting Organization or where the basic registration has been
made by such an Office, the person in whose name that application or
registration stands is a national of a State member of that Contracting
Organization, or is domiciled, or has a real and effective industrial or
commercial establishment, in the territory of the said Contracting
Organization.
(2) The application for international registration (hereinafter referred to
as "the international application") shall be filed with the International
Bureau through the intermediary of the Office with which the basic
application was filed or by which the basic registration was made
(hereinafter referred to as "the Office of origin"), as the case may be.
(3) Any reference in this Protocol to an "Office" or an "Office of a
Contracting Party" shall be construed as a reference to the office that is
in charge, on behalf of a Contracting Party, of the registration of marks,
and any reference in this Protocol to "marks" shall be construed as a
reference to trademarks and service marks.
(4) For the purposes of this Protocol, "territory of a Contracting Party"
means, where the Contracting Party is a State, the territory of that
State and, where the Contracting Party is an intergovernmental
organization, the territory in which the constituting treaty of that
intergovernmental organization applied.
The IPAP has insisted that Article 2 of the Madrid Protocol means that
foreign trademark applicants may file their applications through the
International Bureau or the WIPO, and their applications will be
automatically granted trademark protection without the need for
designating their resident agents in the country.15
Moreover, the IPAP has submitted that the procedure outlined in
the Guide to the International Registration of Marks relating to
representation before the International Bureau is the following, to wit:
Rule 3(1)(a) 09.02 References in the Regulations, Administrative
Instructions or in this Guide to representation relate only to
representation before the International Bureau. The questions of the
need for a representative before the Office of origin or the Office of a
designated Contracting Party (for example, in the event of a refusal of
protection issued by such an Office), who may act as a representative
in such cases and the method of appointment, are outside the scope of
the Agreement, Protocol and Regulations and are governed by the law
and practice of the Contracting Party concerned.
which procedure is in conflict with that under Section 125 of the IP
Code, and constitutes in effect an amendment of the local law by the
Executive Department.16
The IPAP has prayed that the implementation of the Madrid Protocol in
the Philippines be restrained in order to prevent future wrongs
considering that the IP AP and its constituency have a clear and
unmistakable right not to be deprived of the rights granted them by the
IP Code and existing local laws.17
In its comment in behalf of the respondents, the Office of the Solicitor
General (OSG) has stated that the IPAP does not have the locus
standi to challenge the accession to the Madrid Protocol; that the IPAP
cannot invoke the Court's original jurisdiction absent a showing of any
grave abuse of discretion on the part of the respondents; that the
President's ratification of the Madrid Protocol as an executive
agreement is valid because the Madrid Protocol is only procedural,
does not create substantive rights, and does not require the
amendment of the IP Code; that the IPAP is not entitled to the
restraining order or injunction because it suffers no damage from the
ratification by the President, and there is also no urgency for such
relief; and the IPAP has no clear unmistakable right to the relief
sought.18
Issues
The following issues are to be resolved, namely:
I. Whether or not the IP AP has locus standi to challenge the
President's ratification of the Madrid Protocol;
II. Whether or not the President's ratification of the Madrid Protocol is
valid and constitutional; and
III. Whether or not the Madrid Protocol is in conflict with the IP Code.
Ruling of the Court
The petition for certiorari and prohibition is without merit.
A.
The issue of legal standing to sue, or locus standi
The IPAP argues in its reply19 that it has the locus standi to file the
present case by virtue of its being an association whose members
stand to be injured as a result of the enforcement of the Madrid
Protocol in the Philippines; that the injury pertains to the acceptance
and approval of applications submitted through the Madrid
Protocol without local representation as required by Section 125 of the
IP Code;20 and that such will diminish the rights granted by the IP Code
to Intellectual Property Law practitioners like the members of the
IPAP.21
The argument of the IPAP is untenable.
Legal standing refers to "a right of appearance in a court of justice on a
given question."22 According to Agan, Jr. v. Philippine International Air
Terminals Co., Inc.,23standing is "a peculiar concept in constitutional
law because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest."
The Court has frequently felt the need to dwell on the issue of standing
in public or constitutional litigations to sift the worthy from the unworthy
public law litigants seeking redress or relief. The following elucidation
in De Castro v. Judicial and Bar Council24offers the general
understanding of the context of legal standing, or locus standi for that
purpose, viz. :
In public or constitutional litigations, the Court is often burdened with
the determination of the locus standi of the petitioners due to the ever-
present need to regulate the invocation of the intervention of the Court
to correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as indicated
in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have
"'alleged 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," Accordingly,
it has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted
the direct injury test for determining whether a petitioner in a public
action had locus standi. There, the Court held that the person who
would assail the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will
sustain direct injury as a result." Vera was followed in Custodio v.
President of the Senate, Manila Race Horse Trainers' Association v.
De la Fuente, Anti-Chinese League of the Philippines v.
Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being
a mere procedural technicality, can be waived by the Court in the
exercise of its discretion. For instance, in 1949, in Araneta v.
Dinglasan, the Court liberalized the approach when the cases had
"transcendental importance." Some notable controversies whose
petitioners did not pass the direct injury test were allowed to be treated
in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court
decided to resolve the issues raised by the petition due to their
"farreaching implications,'; even if the petitioner had no personality to
file the suit. The liberal approach of Aquino v. Commission on
Elections has been adopted in several notable cases, permitting
ordinary citizens, legislators, and civic organizations to bring their suits
involving the constitutionality or validity of laws, regulations, and
rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action
rests on the theory that the petitioner represents the public in general.
Although such petitioner may not be as adversely affected by the
action complained against as are others, it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection
or relief from the Court in the vindication ofa public right.25
The injury that the IPAP will allegedly suffer from the implementation of
the Madrid Protocol is imaginary, incidental and speculative as
opposed to a direct and material injury required by the foregoing tenets
on locus standi. Additionally, as the OSG points out in the
comment,26 the IPAP has misinterpreted Section 125 of the IP Code on
the issue of representation. The provision only states that a foreign
trademark applicant "shall designate by a written document filed in the
office, the name and address of a Philippine resident who may be
served notices or process in proceedings affecting the mark;" it does
not grant anyone in particular the right to represent the foreign
trademark applicant. Hence, the IPAP cannot justly claim that it will
suffer irreparable injury or diminution of rights granted to it by Section
125 of the IP Code from the implementation of the Madrid Protocol.
Nonetheless, the IPAP also emphasizes that the paramount public
interest involved has transcendental importance because its petition
asserts that the Executive Department has overstepped the bounds of
its authority by thereby cutting into another branch's functions and
responsibilities.27 The assertion of the IPAP may be valid on this score.
There is little question that the issues raised herein against the
implementation of the Madrid Protocol are of transcendental
importance. Accordingly, we recognize IPAP's locus standi to bring the
present challenge. Indeed, the Court has adopted a liberal attitude
towards locus standi whenever the issue presented for consideration
has transcendental significance to the people, or whenever the issues
raised are of paramount importance to the public.28
B.
Accession to the
Madrid Protocol was constitutional
The IP AP submits that respondents Executive Secretary and DFA
Secretary Del Rosario gravely abused their discretion in determining
that there was no need for the Philippine Senate's concurrence with
the Madrid Protocol; that the Madrid Protocol involves changes of
national policy, and its being of a permanent character requires the
Senate's concurrence,29 pursuant to Section 21, Article VII of the
Constitution, which states that "no treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate."
Before going further, we have to distinguish between treaties and
international agreements, which require the Senate's concurrence, on
one hand, and executive agreements, which may be validly entered
into without the Senate's concurrence. Executive Order No. 459, Series
of 1997,30 notes the following definitions, to wit:
Sec. 2. Definition of Terms.
a. International agreement - shall refer to a contract or
understanding, regardless of nomenclature, entered into between the
Philippines and another government in written form and governed by
international law, whether embodied in a single instrument or in two or
more related instruments.
b. Treaties - international agreements entered into by the Philippines
which require legislative concurrence after executive ratification. This
term may include compacts like conventions, declarations, covenants
and acts.
c. Executive Agreements - similar to treaties except that they do not
require legislative concurrence.
The Court has highlighted the difference between treaties and
executive agreements in Commissioner of Customs v. Eastern Sea
Trading,31 thusly:
International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form
of executive agreements.
In the Philippines, the DFA, by virtue of Section 9, Executive Order No.
459,32 is initially given the power to determine whether an agreement is
to be treated as a treaty or as an executive agreement. To determine
the issue of whether DFA Secretary Del Rosario gravely abused his
discretion in making his determination relative to the Madrid
Protocol, we review the jurisprudence on the nature of executive
agreements, as well as the subject matters to be covered by executive
agreements.
The pronouncement in Commissioner of Customs v. Eastern Sea
Trading33is instructive, to wit:
x x x The concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the
Philippines; Article VII, Section 10[7]), which are, however, distinct and
different from "executive agreements," which may be validly entered
into without such concurrence.
"Treaties are formal documents which require ratification with the
approval of two thirds of the Senate. Executive agreements become
binding through executive action without the need of a vote by the
Senate or by Congress.
xxxx
"x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of
our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation
rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.
xxxx
Agreements with respect to the registration of trademarks have
been concluded by the Executive with various countries under the Act
of Congress of March 3, 1881 (21 Stat. 502), x x x
xxxx
In this connection, Francis B. Sayre, former U.S. High Commissioner to
the Philippines, said in his work on "The Constitutionality of Trade
Agreement Acts":
Agreements concluded by the President which fall short of treaties are
commonly referred to as executive agreements and are no less
common in our scheme of government than are the more formal
instruments - treaties and conventions. They sometimes take the form
of exchanges of notes and at other times that or more formal
documents denominated 'agreements' or 'protocols'. The point where
ordinary correspondence between this and other governments ends
and agreements - whether denominated executive agreements or
exchanges of notes or otherwise - begin, may sometimes be difficult of
ready ascertainment. It would be useless to undertake to discuss here
the large variety of executive agreements as such, concluded from
time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreements act, have been negotiated
with foreign governments. x x x It would seem to be sufficient, in order
to show that the trade agreements under the act of 1934 are not
anomalous in character, that they are not treaties, and that they have
abundant precedent in our history, to refer to certain classes of
agreements heretofore entered into by the Executive without the
approval of the Senate. They cover such subjects as the inspection
of vessels, navigation dues, income tax on shipping profits, the
admission of civil aircraft, customs matters, and commercial
relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etcetera. Some of them
were concluded not by specific congressional authorization but in
conformity with policies declared in acts of Congress with respect
to the general subject matter, such as tariff acts; while still others,
particularly those with respect of the settlement of claims against
foreign governments, were concluded independently of any legislation.
(Emphasis ours)
As the foregoing pronouncement indicates, the registration of
trademarks and copyrights have been the subject of executive
agreements entered into without the concurrence of the Senate. Some
executive agreements have been concluded in conformity with the
policies declared in the acts of Congress with respect to the general
subject matter.
It then becomes relevant to examine our state policy on intellectual
property in general, as reflected in Section 2 of our IP Code, to wit:
Section 2. Declaration of State Policy. - The State recognizes that an
effective intellectual and industrial property system is vital to the
development of domestic and creative activity, facilitates transfer
of technology, attracts foreign investments, and ensures market
access for our products. It shall protect and secure the exclusive
rights of scientists, inventors, artists and other gifted citizens to
their intellectual property and creations, particularly when
beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the
State shall promote the diffusion of knowledge and information for the
promotion of national development and progress and the common
good.
It is also the policy of the State to streamline administrative
procedures of registering patents, trademarks and copyright, to
liberalize the registration on the transfer of technology; and to enhance
the enforcement of intellectual property rights in the Philippines.
In view of the expression of state policy having been made by the
Congress itself, the IPAP is plainly mistaken in asserting that "there
was no Congressional act that authorized the accession of the
Philippines to the Madrid Protocol."34
Accordingly, DFA Secretary Del Rosario’s determination and treatment
of the Madrid Protocol as an executive agreement; being in apparent
contemplation of the express state policies on intellectual property as
well as within his power under Executive Order No. 459, are upheld.
We observe at this point that there are no hard and fast rules on the
propriety of entering into a treaty or an executive agreement on a given
subject as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties'
intent and desire to craft their international agreement in the form they
so wish to further their respective interests. The matter of form takes a
back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement; inasmuch as all the
parties; regardless of the form, become obliged to comply conformably
with the time-honored principle of pacta sunt servanda.35The principle
binds the parties to perform in good faith their parts in the
agreements.36
c.
There is no conflict between the
Madrid Protocol and the IP Code.
The IPAP also rests its challenge on the supposed conflict between
the Madrid Protocol and the IP Code, contending that the Madrid
Protocol does away with the requirement of a resident agent under
Section 125 of the IP Code; and that the Madrid Protocol is
unconstitutional for being in conflict with the local law, which it cannot
modify.
The IPAP's contentions stand on a faulty premise. The method of
registration through the IPOPHL, as laid down by the IP Code, is
distinct and separate from the method of registration through the
WIPO, as set in the Madrid Protocol. Comparing the two methods of
registration despite their being governed by two separate systems of
registration is thus misplaced.
In arguing that the Madrid Protocol conflicts with Section 125 of the IP
Code, the IP AP highlights the importance of the requirement for the
designation of a resident agent. It underscores that the requirement is
intended to ensure that non-resident entities seeking protection or
privileges under Philippine Intellectual Property Laws will be subjected
to the country's jurisdiction. It submits that without such resident agent,
there will be a need to resort to costly, time consuming and
cumbersome extraterritorial service of writs and processes.37

The IPAP misapprehends the procedure for examination under

the Madrid Protocol, The difficulty, which the IPAP illustrates, is
minimal, if not altogether inexistent. The IPOPHL actually requires the
designation of the resident agent when it refuses the registration of a
mark. Local representation is further required in the submission of the
Declaration of Actual Use, as well as in the submission of the license
contract.38 The Madrid Protocol accords with the intent and spirit of the
IP Code, particularly on the subject of the registration of trademarks.
The Madrid Protocol does not amend or modify the IP Code on the
acquisition of trademark rights considering that the applications under
the Madrid Protocol are still examined according to the relevant
national law, In that regard, the IPOPHL will only grant protection to a
mark that meets the local registration requirements.

WHEREFORE, this Court DISMISSES the petition for certiorari and

prohibition for lack of merit; and ORDERS the petitioner to pay the
costs of suit.

SO ORDERED.
G.R. No. 113105 August 19, 1994
PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B.
GARCIA and A. GONZALES, petitioners,
vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and
Management; HON. VICENTE T. TAN, as National Treasurer and
COMMISSION ON AUDIT, respondents.
G.R. No. 113174 August 19, 1994
RAUL S. ROCO, as Member of the Philippine Senate, NEPTALI A.
GONZALES, Chairman of the Committee on Finance of the
Philippine Senate, and EDGARDO J. ANGARA, as President and
Chief Executive of the Philippine Senate, all of whom also sue as
taxpayers, in their own behalf and in representation of Senators
HEHERSON ALVAREZ, AGAPITO A. AQUINO, RODOLFO G.
BIAZON, JOSE D. LINA, JR., ERNESTO F. HERRERA, BLAS F.
OPLE, JOHN H. OSMENA, GLORIA MACAPAGAL- ARROYO,
VICENTE C. SOTTO III, ARTURO M. TOLENTINO, FRANCISCO S.
TATAD, WIGBERTO E. TAÑADA and FREDDIE N.
WEBB, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET
AND MANAGEMENT, and THE NATIONAL TREASURER, THE
COMMISSION ON AUDIT, impleaded herein as an unwilling
co-petitioner, respondents.
G.R. No. 113766 August 19, 1994
WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members
of the Senate and as taxpayers, and FREEDOM FROM DEBT
COALITION, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR. in his capacity as Executive
Secretary, HON. SALVADOR ENRIQUEZ, JR., in his capacity as
Secretary of the Department of Budget and Management, HON.
CARIDAD VALDEHUESA, in her capacity as National Treasurer,
and THE COMMISSION ON AUDIT, respondents.
G.R. No. 113888 August 19, 1994
WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members
of the Senate and as taxpayers, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive
Secretary, HON. SALVADOR ENRIQUEZ, JR., in his capacity as
Secretary of the Department of Budget and Management, HON.
CARIDAD VALDEHUESA, in her capacity as National Treasurer,
and THE COMMISSION ON AUDIT, respondents.
Ramon R. Gonzales for petitioners in G.R. No. 113105.
Eddie Tamondong for petitioners in G.R. Nos. 113766 & 113888.
Roco, Buñag, Kapunan, Migallos & Jardeleza for petitioners Raul S.
Roco, Neptali A. Gonzales and Edgardo Angara.
Ceferino Padua Law Office fro intervenor Lawyers Against Monopoly
and Poverty (Lamp).
QUIASON, J.:
Once again this Court is called upon to rule on the conflicting claims of
authority between the Legislative and the Executive in the clash of the
powers of the purse and the sword. Providing the focus for the contest
between the President and the Congress over control of the national
budget are the four cases at bench. Judicial intervention is being
sought by a group of concerned taxpayers on the claim that Congress
and the President have impermissibly exceeded their respective
authorities, and by several Senators on the claim that the President
has committed grave abuse of discretion or acted without jurisdiction in
the exercise of his veto power.
I
House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of
1994), was passed and approved by both houses of Congress on
December 17, 1993. As passed, it imposed conditions and limitations
on certain items of appropriations in the proposed budget previously
submitted by the President. It also authorized members of Congress to
propose and identify projects in the "pork barrels" allotted to them and
to realign their respective operating budgets.
Pursuant to the procedure on the passage and enactment of bills as
prescribed by the Constitution, Congress presented the said bill to the
President for consideration and approval.
On December 30, 1993, the President signed the bill into law, and
declared the same to have become Republic Act No. 7663, entitled
"AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE
GOVERNMENT OF THE PHILIPPINES FROM JANUARY ONE TO
DECEMBER THIRTY ONE, NINETEEN HUNDRED AND NINETY-
FOUR, AND FOR OTHER PURPOSES" (GAA of 1994). On the same
day, the President delivered his Presidential Veto Message, specifying
the provisions of the bill he vetoed and on which he imposed certain
conditions.
No step was taken in either House of Congress to override the vetoes.
In G.R. No. 113105, the Philippine Constitution Association, Exequiel
B. Garcia and Ramon A. Gonzales as taxpayers, prayed for a writ of
prohibition to declare as unconstitutional and void: (a) Article XLI on
the Countrywide Development Fund, the special provision in Article I
entitled Realignment of Allocation for Operational Expenses, and
Article XLVIII on the Appropriation for Debt Service or the amount
appropriated under said Article XLVIII in excess of the P37.9 Billion
allocated for the Department of Education, Culture and Sports; and (b)
the veto of the President of the Special Provision of
Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)
In G.R. No. 113174, sixteen members of the Senate led by Senate
President Edgardo J. Angara, Senator Neptali A. Gonzales, the
Chairman of the Committee on Finance, and Senator Raul S. Roco,
sought the issuance of the writs of certiorari, prohibition and
mandamus against the Executive Secretary, the Secretary of the
Department of Budget and Management, and the National Treasurer.
Suing as members of the Senate and taxpayers, petitioners question:
(1) the constitutionality of the conditions imposed by the President in
the items of the GAA of 1994: (a) for the Supreme Court, (b)
Commission on Audit (COA), (c) Ombudsman, (d) Commission on
Human Rights (CHR), (e) Citizen Armed Forces Geographical Units
(CAFGU'S) and (f) State Universities and Colleges (SUC's); and (2) the
constitutionality of the veto of the special provision in the appropriation
for debt service.
In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto
Tañada (a co-petitioner in G.R. No. 113174), together with the
Freedom from Debt Coalition, a non-stock domestic corporation,
sought the issuance of the writs of prohibition and mandamus against
the Executive Secretary, the Secretary of the Department of Budget
and Management, the National Treasurer, and the COA.
Petitioners Tañada and Romulo sued as members of the Philippine
Senate and taxpayers, while petitioner Freedom from Debt Coalition
sued as a taxpayer. They challenge the constitutionality of the
Presidential veto of the special provision in the appropriations for debt
service and the automatic appropriation of funds therefor.
In G.R. No. 11388, Senators Tañada and Romulo sought the issuance
of the writs of prohibition and mandamus against the same
respondents in G.R. No. 113766. In this petition, petitioners contest the
constitutionality of: (1) the veto on four special provision added to items
in the GAA of 1994 for the Armed Forces of the Philippines (AFP) and
the Department of Public Works and Highways (DPWH); and (2) the
conditions imposed by the President in the implementation of certain
appropriations for the CAFGU's, the DPWH, and the National Housing
Authority (NHA).
Petitioners also sought the issuance of temporary restraining orders to
enjoin respondents Secretary of Budget and Management, National
Treasurer and COA from enforcing the questioned provisions of the
GAA of 1994, but the Court declined to grant said provisional reliefs on
the time- honored principle of according the presumption of validity to
statutes and the presumption of regularity to official acts.
In view of the importance and novelty of most of the issues raised in
the four petitions, the Court invited former Chief Justice Enrique M.
Fernando and former Associate Justice Irene Cortes to submit their
respective memoranda as Amicus curiae, which they graciously did.
II
Locus Standi
When issues of constitutionality are raised, the Court can exercise its
power of judicial review only if the following requisites are compresent:
(1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3)
the exercise of judicial review is pleaded at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case (Luz
Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA
51 [1990]; Dumlao v. Commission on Elections, 95 SCRA 392 [1980];
People v. Vera, 65 Phil. 56 [1937]).
While the Solicitor General did not question the locus standi of
petitioners in G.R. No. 113105, he claimed that the remedy of the
Senators in the other petitions is political (i.e., to override the vetoes) in
effect saying that they do not have the requisite legal standing to bring
the suits.
The legal standing of the Senate, as an institution, was recognized
in Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990). In said case, 23
Senators, comprising the entire membership of the Upper House of
Congress, filed a petition to nullify the presidential veto of Section 55 of
the GAA of 1989. The filing of the suit was authorized by Senate
Resolution No. 381, adopted on February 2, 1989, and which reads as
follows:
Authorizing and Directing the Committee on Finance to
Bring in the Name of the Senate of the Philippines the
Proper Suit with the Supreme Court of the Philippines
contesting the Constitutionality of the Veto by the
President of Special and General Provisions,
particularly Section 55, of the General Appropriation Bill
of 1989 (H.B. No. 19186) and For Other Purposes.
In the United States, the legal standing of a House of Congress to sue
has been recognized (United States v. American Tel. & Tel. Co., 551 F.
2d 384, 391 [1976]; Notes: Congressional Access To The Federal
Courts, 90 Harvard Law Review 1632 [1977]).
While the petition in G.R. No. 113174 was filed by 16 Senators,
including the Senate President and the Chairman of the Committee on
Finance, the suit was not authorized by the Senate itself. Likewise, the
petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling
resolution for the purpose.
Therefore, the question of the legal standing of petitioners in the three
cases becomes a preliminary issue before this Court can inquire into
the validity of the presidential veto and the conditions for the
implementation of some items in the GAA of 1994.
We rule that a member of the Senate, and of the House of
Representatives for that matter, has the legal standing to question the
validity of a presidential veto or a condition imposed on an item in an
appropriation bill.
Where the veto is claimed to have been made without or in excess of
the authority vested on the President by the Constitution, the issue of
an impermissible intrusion of the Executive into the domain of the
Legislature arises (Notes: Congressional Standing To Challenge
Executive Action, 122 University of Pennsylvania Law Review 1366
[1974]).
To the extent the power of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution (Coleman v. Miller, 307
U.S. 433 [1939]; Holtzman v. Schlesinger, 484 F. 2d 1307 [1973]).
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress (Kennedy v. Jones, 412 F. Supp.
353 [1976]). In such a case, any member of Congress can have a
resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a
whole or individual Senators as such having a
substantial interest in the question at issue. It could
likewise be said that there was the requisite injury to
their rights as Senators. It would then be futile to raise
any locus standi issue. Any intrusion into the domain
appertaining to the Senate is to be resisted. Similarly, if
the situation were reversed, and it is the Executive
Branch that could allege a transgression, its officials
could likewise file the corresponding action. What
cannot be denied is that a Senator has standing to
maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office
(Memorandum, p. 14).
It is true that the Constitution provides a mechanism for overriding a
veto (Art. VI, Sec. 27 [1]). Said remedy, however, is available only
when the presidential veto is based on policy or political considerations
but not when the veto is claimed to be ultra vires. In the latter case, it
becomes the duty of the Court to draw the dividing line where the
exercise of executive power ends and the bounds of legislative
jurisdiction begin.
III
G.R. No. 113105
1. Countrywide Development Fund
Article XLI of the GAA of 1994 sets up a Countrywide Development
Fund of P2,977,000,000.00 to "be used for infrastructure, purchase of
ambulances and computers and other priority projects and activities
and credit facilities to qualified beneficiaries." Said Article provides:
COUNTRYWIDE DEVELOPMENT FUND
For Fund requirements of countrywide
development projects P 2,977,000,000
———————
New Appropriations, by Purpose
Current Operating Expenditures
A. PURPOSE
Personal Maintenance Capital Total
Services and Other Outlays
Operating
Expenses
1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000
P2,977,000,000
TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000
P2,977,000,000
Special Provisions
1. Use and Release of Funds. The amount herein
appropriated shall be used for infrastructure, purchase
of ambulances and computers and other priority
projects and activities, and credit facilities to qualified
beneficiaries as proposed and identified by officials
concerned according to the following allocations:
Representatives, P12,500,000 each; Senators,
P18,000,000 each; Vice-President,
P20,000,000; PROVIDED, That, the said credit facilities
shall be constituted as a revolving fund to be
administered by a government financial institution (GFI)
as a trust fund for lending operations. Prior years
releases to local government units and national
government agencies for this purpose shall be turned
over to the government financial institution which shall
 be the sole administrator of credit facilities released
from this fund.
The fund shall be automatically released quarterly by
way of Advice of Allotments and Notice of Cash
Allocation directly to the assigned implementing agency
not later than five (5) days after the beginning of each
quarter upon submission of the list of projects and
activities by the officials concerned.
2. Submission of Quarterly Reports. The Department of
Budget and Management shall submit within thirty (30)
days after the end of each quarter a report to the
Senate Committee on Finance and the House
Committee on Appropriations on the releases made
from this Fund. The report shall include the listing of the
projects, locations, implementing agencies and the
endorsing officials (GAA of 1994, p. 1245).
Petitioners claim that the power given to the members of Congress to
propose and identify the projects and activities to be funded by the
Countrywide Development Fund is an encroachment by the legislature
on executive power, since said power in an appropriation act in
implementation of a law. They argue that the proposal and
identification of the projects do not involve the making of laws or the
repeal and amendment thereof, the only function given to the Congress
by the Constitution (Rollo, pp. 78- 86).
Under the Constitution, the spending power called by James Madison
as "the power of the purse," belongs to Congress, subject only to the
veto power of the President. The President may propose the budget,
but still the final say on the matter of appropriations is lodged in the
Congress.
The power of appropriation carries with it the power to specify the
project or activity to be funded under the appropriation law. It can be as
detailed and as broad as Congress wants it to be.
The Countrywide Development Fund is explicit that it shall be used "for
infrastructure, purchase of ambulances and computers and other
priority projects and activities and credit facilities to qualified
beneficiaries . . ." It was Congress itself that determined the purposes
for the appropriation.
Executive function under the Countrywide Development Fund involves
implementation of the priority projects specified in the law.
The authority given to the members of Congress is only to propose and
identify projects to be implemented by the President. Under Article XLI
of the GAA of 1994, the President must perforce examine whether the
proposals submitted by the members of Congress fall within the
specific items of expenditures for which the Fund was set up, and if
qualified, he next determines whether they are in line with other
projects planned for the locality. Thereafter, if the proposed projects
qualify for funding under the Funds, it is the President who shall
implement them. In short, the proposals and identifications made by
the members of Congress are merely recommendatory.
The procedure of proposing and identifying by members of Congress
of particular projects or activities under Article XLI of the GAA of 1994
is imaginative as it is innovative.
The Constitution is a framework of a workable government and its
interpretation must take into account the complexities, realities and
politics attendant to the operation of the political branches of
government. Prior to the GAA of 1991, there was an uneven allocation
of appropriations for the constituents of the members of Congress, with
the members close to the Congressional leadership or who hold cards
for "horse-trading," getting more than their less favored colleagues.
The members of Congress also had to reckon with an unsympathetic
President, who could exercise his veto power to cancel from the
appropriation bill a pet project of a Representative or Senator.
The Countrywide Development Fund attempts to make equal the
unequal. It is also a recognition that individual members of Congress,
far more than the President and their congressional colleagues are
likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project.
2. Realignment of Operating Expenses
Under the GAA of 1994, the appropriation for the Senate is 02 Traveling Expenses 32,841
P472,000,000.00 of which P464,447,000.00 is appropriated for current 03 Communication Services 7,666
operating expenditures, while the appropriation for the House of 04 Repair and Maintenance of Government Facilities
Representatives is P1,171,924,000.00 of which P1,165,297,000.00 is 1,220
appropriated for current operating expenditures (GAA of 1994, pp. 2, 4, 05 Repair and Maintenance of Government Vehicles
9, 12). 318
06 Transportation Services 128
The 1994 operating expenditures for the Senate are as follows: 07 Supplies and Materials 20,189
08 Rents 24,584
Personal Services 14 Water/Illumination and Power 6,561
15 Social Security Benefits and Other Claims 3,270
17 Training and Seminars Expenses 2,225
Salaries, Permanent 153,347
18 Extraordinary and Miscellaneous Expenses 9,360
Salaries/Wage, Contractual/Emergency 6,870
23 Advertising and Publication
————
24 Fidelity Bonds and Insurance Premiums 1,325
Total Salaries and Wages 160,217
29 Other Services 89,778
=======
————
Total Maintenance and Other Operating Expenditures
Other Compensation 200,415
————
Total Current Operating Expenditures 464,447
=======
Step Increments 1,073
Honoraria and Commutable Allowances 3,731 (GAA of 1994, pp. 3-4)
Compensation Insurance Premiums 1,579
Pag-I.B.I.G. Contributions 1,184 The 1994 operating expenditures for the House of Representatives are
Medicare Premiums 888 as follows:
Bonus and Cash Gift 14,791
Terminal Leave Benefits 2,000
Personal Services
Personnel Economic Relief Allowance 10,266
Additional Compensation of P500 under A.O. 53 11,130
Others 57,173 Salaries, Permanent 261,557
———— Salaries/Wages, Contractual/Emergency 143,643
Total Other Compensation 103,815 ————
———— Total Salaries and Wages 405,200
01 Total Personal Services 264,032 =======
=======
Other Compensation
Maintenance and Other Operating Expenses
Step Increments 4,312
Honoraria and Commutable
Allowances 4,764
Compensation Insurance
Premiums 1,159
Pag-I.B.I.G. Contributions 5,231
Medicare Premiums 2,281
Bonus and Cash Gift 35,669
Terminal Leave Benefits 29
Personnel Economic Relief
Allowance 21,150
Additional Compensation of P500 under A.O. 53
Others 106,140
————
Total Other Compensation 202,863
————
01 Total Personal Services 608,063
=======
Maintenance and Other Operating Expenses
02 Traveling Expenses 139,611
03 Communication Services 22,514
04 Repair and Maintenance of Government Facilities
5,116
05 Repair and Maintenance of Government Vehicles
1,863
06 Transportation Services 178
07 Supplies and Materials 55,248
10 Grants/Subsidies/Contributions 940
14 Water/Illumination and Power 14,458
15 Social Security Benefits and Other Claims 325
17 Training and Seminars Expenses 7,236
18 Extraordinary and Miscellaneous Expenses 14,474
20 Anti-Insurgency/Contingency Emergency Expenses
9,400
23 Advertising and Publication 242
24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 284,209
————
Total Maintenance and Other Operating Expenditures
557,234
————
Total Current Operating Expenditures 1,165,297
=======
(GAA of 1994, pp. 11-12)
The Special Provision Applicable to the Congress of the Philippines
provides:
4. Realignment of Allocation for Operational Expenses.
A member of Congress may realign his allocation for
operational expenses to any other expenses category
provide the total of said allocation is not exceeded.
(GAA of 1994, p. 14).
The appropriation for operating expenditures for each House is further
divided into expenditures for salaries, personal services, other
compensation benefits, maintenance expenses and other operating
expenses. In turn, each member of Congress is allotted for his own
operating expenditure a proportionate share of the appropriation for the
House to which he belongs. If he does not spend for one items of
expense, the provision in question allows him to transfer his allocation
in said item to another item of expense.
Petitioners assail the special provision allowing a member of Congress
to realign his allocation for operational expenses to any other expense
category (Rollo, pp. 82-92), claiming that this practice is prohibited by
Section 25(5), Article VI of the Constitution. Said section provides:
No law shall be passed authorizing any transfer of
appropriations: however, the President, the President of
the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations.
The proviso of said Article of the Constitution grants the President of
the Senate and the Speaker of the House of Representatives the
power to augment items in an appropriation act for their respective
offices from savings in other items of their appropriations, whenever
there is a law authorizing such augmentation.
The special provision on realignment of the operating expenses of
members of Congress is authorized by Section 16 of the General
Provisions of the GAA of 1994, which provides:
Expenditure Components. Except by act of the
Congress of the Philippines, no change or modification
shall be made in the expenditure items authorized in
this Act and other appropriation laws unless in cases
of augmentations from savings in appropriations as
authorized under Section 25(5) of Article VI of the
Constitution (GAA of 1994, p. 1273).
Petitioners argue that the Senate President and the Speaker of the
House of Representatives, but not the individual members of Congress
are the ones authorized to realign the savings as appropriated.
Under the Special Provisions applicable to the Congress of the
Philippines, the members of Congress only determine the necessity of
the realignment of the savings in the allotments for their operating
expenses. They are in the best position to do so because they are the
ones who know whether there are savings available in some items and
whether there are deficiencies in other items of their operating
expenses that need augmentation. However, it is the Senate President
and the Speaker of the House of Representatives, as the case may be,
who shall approve the realignment. Before giving their stamp of
approval, these two officials will have to see to it that:
(1) The funds to be realigned or transferred are actually savings in the
items of expenditures from which the same are to be taken; and
(2) The transfer or realignment is for the purposes of augmenting the
items of expenditure to which said transfer or realignment is to be
made.
3. Highest Priority for Debt Service
While Congress appropriated P86,323,438,000.00 for debt service
(Article XLVII of the GAA of 1994), it appropriated only
P37,780,450,000.00 for the Department of Education Culture and
Sports. Petitioners urged that Congress cannot give debt service the
highest priority in the GAA of 1994 (Rollo, pp. 93-94) because under
the Constitution it should be education that is entitled to the highest
funding. They invoke Section 5(5), Article XIV thereof, which provides:
(5) The State shall assign the highest budgetary priority
to education and ensure that teaching will attract and
retain its rightful share of the best available talents
through adequate remuneration and other means of job
satisfaction and fulfillment.
This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221
(1991), where this Court held that Section 5(5), Article XIV of the
Constitution, is merely directory, thus:
While it is true that under Section 5(5), Article XIV of
the Constitution, Congress is mandated to "assign the
highest budgetary priority to education" in order to
"insure that teaching will attract and retain its rightful
share of the best available talents through adequate
remuneration and other means of job satisfaction and
fulfillment," it does not thereby follow that the hands of
Congress are so hamstrung as to deprive it the power
to respond to the imperatives of the national interest
and for the attainment of other state policies or
objectives.
As aptly observed by respondents, since 1985, the
budget for education has tripled to upgrade and
improve the facility of the public school system. The
compensation of teachers has been doubled. The
amount of P29,740,611,000.00 set aside for the
Department of Education, Culture and Sports under the
General Appropriations Act (R.A. No. 6381), is the
highest budgetary allocation among all department
 budgets. This is a clear compliance with the aforesaid
constitutional mandate according highest priority to
education.
Having faithfully complied therewith, Congress is
certainly not without any power, guided only by its good
judgment, to provide an appropriation, that can
reasonably service our enormous debt, the greater
portion of which was inherited from the previous
administration. It is not only a matter of honor and to
protect the credit standing of the country. More
especially, the very survival of our economy is at stake.
Thus, if in the process Congress appropriated an
amount for debt service bigger than the share allocated
to education, the Court finds and so holds that said
appropriation cannot be thereby assailed as
unconstitutional.
G.R. No. 113105
G.R. No. 113174
Veto of Provision on Debt Ceiling
The Congress added a Special Provision to Article XLVIII
(Appropriations for Debt Service) of the GAA of 1994 which provides:
Special Provisions
1. Use of the Fund. The appropriation authorized herein
shall be used for payment of principal and interest of
foreign and domestic indebtedness; PROVIDED, That
any payment in excess of the amount herein
appropriated shall be subject to the approval of the
President of the Philippines with the concurrence of the
Congress of the
Philippines; PROVIDED, FURTHER, That in no case
shall this fund be used to pay for the liabilities of the
Central Bank Board of Liquidators.
2. Reporting Requirement. The Bangko Sentral ng
Pilipinas and the Department of Finance shall submit a
quarterly report of actual foreign and domestic debt
service payments to the House Committee on
Appropriations and Senate Finance Committee within
one (1) month after each quarter (GAA of 1944, pp.
1266).
The President vetoed the first Special Provision, without vetoing the
P86,323,438,000.00 appropriation for debt service in said Article.
According to the President's Veto Message:
IV. APPROPRIATIONS FOR DEBT SERVICE
I would like to emphasize that I concur fully with the
desire of Congress to reduce the debt burden by
decreasing the appropriation for debt service as well as
the inclusion of the Special Provision quoted below.
Nevertheless, I believe that this debt reduction scheme
cannot be validly done through the 1994 GAA. This
must be addressed by revising our debt policy by way
of innovative and comprehensive debt reduction
programs conceptualized within the ambit of the
Medium-Term Philippine Development Plan.
Appropriations for payment of public debt, whether
foreign or domestic, are automatically appropriated
pursuant to the Foreign Borrowing Act and Section 31
of P.D. No. 1177 as reiterated under Section 26,
Chapter 4, Book VI of E.O. No. 292, the Administrative
Code of 1987. I wish to emphasize that the
constitutionality of such automatic provisions on debt
servicing has been upheld by the Supreme Court in the
case of "Teofisto T. Guingona, Jr., and Aquilino Q.
Pimentel, Jr. v. Hon. Guillermo N. Carague, in his
capacity as Secretary of Budget and Management, et
al.," G.R. No. 94571, dated April 22, 1991.
I am, therefore vetoing the following special provision
for the reason that the GAA is not the appropriate
 legislative measure to amend the provisions of the
Foreign Borrowing Act, P.D. No. 1177 and E.O. No.
292:
Use of the Fund. The appropriation
authorized herein shall be used for
payment of principal and interest of
foreign and domestic
indebtedness: PROVIDED, That any
payment in excess of the amount herein
appropriated shall be subject to the
approval of the President of the
Philippines with the concurrence of the
Congress of the
Philippines: PROVIDED, FURTHER, Th
at in no case shall this fund be used to
pay for the liabilities of the Central Bank
Board of Liquidators (GAA of 1994, p.
1290).
Petitioners claim that the President cannot veto the Special Provision
on the appropriation for debt service without vetoing the entire amount
of P86,323,438.00 for said purpose (Rollo, G.R. No. 113105, pp. 93-
98; Rollo, G.R. No. 113174, pp. 16-18). The Solicitor General
counterposed that the Special Provision did not relate to the item of
appropriation for debt service and could therefore be the subject of an
item veto (Rollo, G.R. No. 113105, pp. 54-60; Rollo, G.R. No. 113174,
pp. 72-82).
This issue is a mere rehash of the one put to rest in Gonzales
v. Macaraig, Jr., 191 SCRA 452 (1990). In that case, the issue was
stated by the Court, thus:
The fundamental issue raised is whether or not the veto
by the President of Section 55 of the 1989
Appropriations Bill (Section 55
FY '89), and subsequently of its counterpart Section 16
of the 1990 Appropriations Bill (Section 16 FY '90), is
unconstitutional and without effect.
The Court re-stated the issue, just so there would not be any
misunderstanding about it, thus:
The focal issue for resolution is whether or not the
President exceeded the item-veto power accorded by
the Constitution. Or differently put, has the President
the power to veto "provisions" of an Appropriations Bill?
The bases of the petition in Gonzales, which are similar to those
invoked in the present case, are stated as follows:
In essence, petitioners' cause is anchored on the
following grounds: (1) the President's line-veto power
as regards appropriation bills is limited to item/s and
does not cover provision/s; therefore, she exceeded her
authority when she vetoed Section 55 (FY '89) and
Section 16 (FY '90) which are provisions; (2) when the
President objects to a provision of an appropriation bill,
she cannot exercise the item-veto power but should
veto the entire bill; (3) the item-veto power does not
carry with it the power to strike out conditions or
restrictions for that would be legislation, in violation of
the doctrine of separation of powers; and (4) the power
of augmentation in Article VI, Section 25 [5] of the 1987
Constitution, has to be provided for by law and,
therefore, Congress is also vested with the prerogative
to impose restrictions on the exercise of that power.
The restrictive interpretation urged by petitioners that
the President may not veto a provision without vetoing
the entire bill not only disregards the basic principle that
a distinct and severable part of a bill may be the subject
of a separate veto but also overlooks the Constitutional
mandate that any provision in the general
appropriations bill shall relate specifically to some
particular appropriation therein and that any such
provision shall be limited in its operation to the
appropriation to which it relates (1987 Constitution,
Article VI, Section 25 [2]). In other words, in the true
sense of the term, a provision in an Appropriations Bill
is limited in its operation to some particular
 appropriation to which it relates, and does not relate to
the entire bill.
The Court went one step further and ruled that even
assuming arguendo that "provisions" are beyond the executive power
to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary
sense of the term, they are "inappropriate provisions" that should be
treated as "items" for the purpose of the President's veto power.
The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said
that Congress cannot include in a general appropriations bill matters
that should be more properly enacted in separate legislation, and if it
does that, the inappropriate provisions inserted by it must be treated as
"item", which can be vetoed by the President in the exercise of his
item-veto power.
It is readily apparent that the Special Provision applicable to the
appropriation for debt service insofar as it refers to funds in excess of
the amount appropriated in the bill, is an "inappropriate" provision
referring to funds other than the P86,323,438,000.00 appropriated in
the General Appropriations Act of 1991.
Likewise the vetoed provision is clearly an attempt to repeal Section 31
of P.D. No. 1177 (Foreign Borrowing Act) and E.O. No. 292, and to
reverse the debt payment policy. As held by the Court in Gonzales, the
repeal of these laws should be done in a separate law, not in the
appropriations law.
The Court will indulge every intendment in favor of the constitutionality
of a veto, the same as it will presume the constitutionality of an act of
Congress (Texas Co. v. State, 254 P. 1060; 31 Ariz, 485, 53 A.L.R.
258 [1927]).
The veto power, while exercisable by the President, is actually a part of
the legislative process (Memorandum of Justice Irene Cortes
as Amicus Curiae, pp. 3-7). That is why it is found in Article VI on the
Legislative Department rather than in Article VII on the Executive
Department in the Constitution. There is, therefore, sound basis to
indulge in the presumption of validity of a veto. The burden shifts on
those questioning the validity thereof to show that its use is a violation
of the Constitution.
Under his general veto power, the President has to veto the entire bill,
not merely parts thereof (1987 Constitution, Art. VI, Sec. 27[1]). The
exception to the general veto power is the power given to the President
to veto any particular item or items in a general appropriations bill
(1987 Constitution, Art. VI,
Sec. 27[2]). In so doing, the President must veto the entire item.
A general appropriations bill is a special type of legislation, whose
content is limited to specified sums of money dedicated to a specific
purpose or a separate fiscal unit (Beckman, The Item Veto Power of
the Executive,
31 Temple Law Quarterly 27 [1957]).
The item veto was first introduced by the Organic Act of the Philippines
passed by the U.S. Congress on August 29, 1916. The concept was
adopted from some State Constitutions.
Cognizant of the legislative practice of inserting provisions, including
conditions, restrictions and limitations, to items in appropriations bills,
the Constitutional Convention added the following sentence to Section
20(2), Article VI of the 1935 Constitution:
. . . When a provision of an appropriation bill affect one
or more items of the same, the President cannot veto
the provision without at the same time vetoing the
particular item or items to which it relates . . . .
In short, under the 1935 Constitution, the President was empowered to
veto separately not only items in an appropriations bill but also
"provisions".
While the 1987 Constitution did not retain the aforementioned sentence
added to Section 11(2) of Article VI of the 1935 Constitution, it included
the following provision:
No provision or enactment shall be embraced in the
general appropriations bill unless it relates specifically
 to some particular appropriation therein. Any such
provision or enactment shall be limited in its operation
to the appropriation to which it relates (Art. VI, Sec.
25[2]).
In Gonzales, we made it clear that the omission of that sentence of
Section 16(2) of the 1935 Constitution in the 1987 Constitution should
not be interpreted to mean the disallowance of the power of the
President to veto a "provision".
As the Constitution is explicit that the provision which Congress can
include in an appropriations bill must "relate specifically to some
particular appropriation therein" and "be limited in its operation to the
appropriation to which it relates," it follows that any provision which
does not relate to any particular item, or which extends in its operation
beyond an item of appropriation, is considered "an inappropriate
provision" which can be vetoed separately from an item. Also to be
included in the category of "inappropriate provisions" are
unconstitutional provisions and provisions which are intended to
amend other laws, because clearly these kind of laws have no place in
an appropriations bill. These are matters of general legislation more
appropriately dealt with in separate enactments. Former Justice Irene
Cortes, as Amicus Curiae, commented that Congress cannot by law
establish conditions for and regulate the exercise of powers of the
President given by the Constitution for that would be an
unconstitutional intrusion into executive prerogative.
The doctrine of "inappropriate provision" was well elucidated in Henry
v. Edwards, supra., thus:
Just as the President may not use his item-veto to
usurp constitutional powers conferred on the
legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him
as chief executive officer of the state by including in a
general appropriation bill matters more properly
enacted in separate legislation. The Governor's
constitutional power to veto bills of general legislation . .
. cannot be abridged by the careful placement of such
measures in a general appropriation bill, thereby forcing
the Governor to choose between approving
unacceptable substantive legislation or vetoing "items"
of expenditures essential to the operation of
government. The legislature cannot by location of a bill
give it immunity from executive veto. Nor can it
circumvent the Governor's veto power over substantive
legislation by artfully drafting general law measures so
that they appear to be true conditions or limitations on
an item of appropriation. Otherwise, the legislature
would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of
government in contravention of the separation of
powers doctrine . . . We are no more willing to allow the
legislature to use its appropriation power to infringe on
the Governor's constitutional right to veto matters of
substantive legislation than we are to allow the
Governor to encroach on the Constitutional powers of
the legislature. In order to avoid this result, we hold
that, when the legislature inserts inappropriate
provisions in a general appropriation bill, such
provisions must be treated as "items" for purposes of
the Governor's item veto power over general
appropriation bills.
xxx xxx xxx
. . . Legislative control cannot be exercised in such a
manner as to encumber the general appropriation bill
with veto-proof "logrolling measures", special interest
provisions which could not succeed if separately
enacted, or "riders", substantive pieces of legislation
incorporated in a bill to insure passage without veto . . .
(Emphasis supplied).
Petitioners contend that granting arguendo that the veto of the Special
Provision on the ceiling for debt payment is valid, the President cannot
automatically appropriate funds for debt payment without complying
with the conditions for automatic appropriation under the provisions of
R.A. No. 4860 as amended by P.D. No. 81 and the provisions of P.D.
No. 1177 as amended by the Administrative Code of 1987 and P.D.
No. 1967 (Rollo, G.R. No. 113766, pp. 9-15).
Petitioners cannot anticipate that the President will not faithfully
execute the laws. The writ of prohibition will not issue on the fear that
official actions will be done in contravention of the laws.
The President vetoed the entire paragraph one of the Special Provision
of the item on debt service, including the provisions that the
appropriation authorized in said item "shall be used for payment of the
principal and interest of foreign and domestic indebtedness" and that
"in no case shall this fund be used to pay for the liabilities of the
Central Bank Board of Liquidators." These provisions are germane to
and have a direct connection with the item on debt service. Inherent in
the power of appropriation is the power to specify how the money shall
be spent (Henry v. Edwards, LA, 346 So., 2d., 153). The said provisos,
being appropriate provisions, cannot be vetoed separately. Hence the
item veto of said provisions is void.
We reiterate, in order to obviate any misunderstanding, that we are
sustaining the veto of the Special Provision of the item on debt service
only with respect to the proviso therein requiring that "any payment in
excess of the amount herein, appropriated shall be subject to the
approval of the President of the Philippines with the concurrence of the
Congress of the Philippines . . ."
G.R. NO. 113174
G.R. NO. 113766
G.R. NO. 11388
1. Veto of provisions for revolving funds of SUC's.
In the appropriation for State Universities and Colleges (SUC's), the
President vetoed special provisions which authorize the use of income
and the creation, operation and maintenance of revolving funds. The
Special Provisions vetoed are the following:
(H. 7) West Visayas State University
Equal Sharing of Income. Income earned by the
University subject to Section 13 of the special
provisions applicable to all State Universities and
Colleges shall be equally shared by the University and
the University Hospital (GAA of 1994, p. 395).
xxx xxx xxx
(J. 3) Leyte State College
Revolving Fund for the Operation of LSC House and
Human Resources Development Center (HRDC). The
income of Leyte State College derived from the
operation of its LSC House and HRDC shall be
constituted into a Revolving Fund to be deposited in an
authorized government depository bank for the
operational expenses of these projects/services. The
net income of the Revolving Fund at the end of the year
shall be remitted to the National Treasury and shall
accrue to the General Fund. The implementing
guidelines shall be issued by the Department of Budget
and Management (GAA of 1994, p. 415).
The vetoed Special Provisions applicable to all SUC's are the following:
12. Use of Income from Extension Services. State
Universities and Colleges are authorized to use their
income from their extension services. Subject to the
approval of the Board of Regents and the approval of a
special budget pursuant to Sec. 35, Chapter 5, Book VI
of E.O.
No. 292, such income shall be utilized solely for faculty
development, instructional materials and work study
program (GAA of 1994, p. 490).
xxx xxx xxx
13. Income of State Universities and Colleges. The
income of State Universities and Colleges derived from
tuition fees and other sources as may be imposed by
governing boards other than those accruing to revolving
funds created under LOI Nos. 872 and 1026 and those
authorized to be recorded as trust receipts pursuant to
 Section 40, Chapter 5, Book VI of E.O. No. 292 shall be
deposited with the National Treasury and recorded as a
Special Account in the General Fund pursuant to P.D.
No. 1234 and P.D. No. 1437 for the use of the
institution, subject to Section 35, Chapter 5, Book VI of
E.O. No. 292L PROVIDED, That disbursements from
the Special Account shall not exceed the amount
actually earned and
deposited: PROVIDED, FURTHER, That a cash
advance on such income may be allowed State half of
income actually realized during the preceding year and
this cash advance shall be charged against income
actually earned during the budget year: AND
PROVIDED, FINALLY, That in no case shall such funds
be used to create positions, nor for payment of salaries,
wages or allowances, except as may be specifically
approved by the Department of Budge and
Management for income-producing activities, or to
purchase equipment or books, without the prior
approval of the President of the Philippines pursuant to
Letter of Implementation No. 29.
All collections of the State Universities and Colleges for
fees, charges and receipts intended for private recipient
units, including private foundations affiliated with these
institutions shall be duly acknowledged with official
receipts and deposited as a trust receipt before said
income shall be subject to Section 35, Chapter 5, Book
VI of E.O. No. 292
(GAA of 1994, p. 490).
The President gave his reason for the veto thus:
Pursuant to Section 65 of the Government Auditing
Code of the Philippines, Section 44, Chapter 5, Book VI
of E.O. No. 292, s. 1987 and Section 22, Article VII of
the Constitution, all income earned by all Government
offices and agencies shall accrue to the General Fund
of the Government in line with the One Fund Policy
enunciated by Section 29 (1), Article VI and Section 22,
Article VII of the Constitution. Likewise, the creation
and establishment of revolving funds shall be
authorized by substantive law pursuant to Section 66 of
the Government Auditing Code of the Philippines and
Section 45, Chapter 5, Book VI of E.O. No. 292.
Notwithstanding the aforementioned provisions of the
Constitution and existing law, I have noted the
proliferation of special provisions authorizing the use of
agency income as well as the creation, operation and
maintenance of revolving funds.
I would like to underscore the facts that such income
were already considered as integral part of the revenue
and financing sources of the National Expenditure
Program which I previously submitted to Congress.
Hence, the grant of new special provisions authorizing
the use of agency income and the establishment of
revolving funds over and above the agency
appropriations authorized in this Act shall effectively
reduce the financing sources of the 1994 GAA and, at
the same time, increase the level of expenditures of
some agencies beyond the well-coordinated,
rationalized levels for such agencies. This
corresponding increases the overall deficit of the
National Government (Veto Message, p. 3).
Petitioners claim that the President acted with grave abuse of
discretion when he disallowed by his veto the "use of income" and the
creation of "revolving fund" by the Western Visayas State University
and Leyte State Colleges when he allowed other government offices,
like the National Stud Farm, to use their income for their operating
expenses (Rollo, G.R. No. 113174, pp. 15-16).
There was no undue discrimination when the President vetoed said
special provisions while allowing similar provisions in other government
agencies. If some government agencies were allowed to use their
income and maintain a revolving fund for that purpose, it is because
these agencies have been enjoying such privilege before by virtue of
the special laws authorizing such practices as exceptions to the "one-
fund policy" (e.g., R.A. No. 4618 for the National Stud Farm, P.D. No.
902-A for the Securities and Exchange Commission; E.O. No. 359 for
the Department of Budget and Management's Procurement Service).
2. Veto of provision on 70% (administrative)/30% (contract)
ratio for road maintenance.
In the appropriation for the Department of Public Works and Highways,
the President vetoed the second paragraph of Special Provision No. 2,
specifying the 30% maximum ration of works to be contracted for the
maintenance of national roads and bridges. The said paragraph reads
as follows:
2. Release and Use of Road Maintenance Funds.
Funds allotted for the maintenance and repair of roads
which are provided in this Act for the Department of
Public Works and Highways shall be released to the
respective Engineering District, subject to such rules
and regulations as may be prescribed by the
Department of Budget and Management. Maintenance
funds for roads and bridges shall be exempt from
budgetary reserve.
Of the amount herein appropriated for the maintenance
of national roads and bridges, a maximum of thirty
percent (30%) shall be contracted out in accordance
with guidelines to be issued by the Department of
Public Works and Highways. The balance shall be used
for maintenance by force account.
Five percent (5%) of the total road maintenance fund
appropriated herein to be applied across the board to
the allocation of each region shall be set aside for the
maintenance of roads which may be converted to or
taken over as national roads during the current year
and the same shall be released to the central office of
the said department for eventual
sub-allotment to the concerned region and
district: PROVIDED, That any balance of the said five
percent (5%) shall be restored to the regions on a pro-
rata basis for the maintenance of existing national
roads.
No retention or deduction as reserves or overhead
expenses shall be made, except as authorized by law
or upon direction of the President
(GAA of 1994, pp. 785-786; Emphasis supplied).
The President gave the following reason for the veto:
While I am cognizant of the well-intended desire of
Congress to impose certain restrictions contained in
some special provisions, I am equally aware that many
programs, projects and activities of agencies would
require some degree of flexibility to ensure their
successful implementation and therefore risk their
completion. Furthermore, not only could these
restrictions and limitations derail and impede program
implementation but they may also result in a breach of
contractual obligations.
D.1.a. A study conducted by the Infrastructure
Agencies show that for practical intent and purposes,
maintenance by contract could be undertaken to an
optimum of seventy percent (70%) and the remaining
thirty percent (30%) by force account. Moreover, the
policy of maximizing implementation through contract
maintenance is a covenant of the Road and Road
Transport Program Loan from the Asian Development
Bank (ADB Loan No. 1047-PHI-1990) and Overseas
Economic Cooperation Fund (OECF Loan No. PH-C17-
199). The same is a covenant under the World Bank
(IBRD) Loan for the Highway Management Project
(IBRD Loan
No. PH-3430) obtained in 1992.
In the light of the foregoing and considering the policy
of the government to encourage and maximize private
sector participation in the regular repair and
maintenance of infrastructure facilities, I am directly
 vetoing the underlined second paragraph of Special
Provision No. 2 of the Department of Public Works and
Highways (Veto Message, p. 11).
The second paragraph of Special Provision No. 2 brings to fore the
divergence in policy of Congress and the President. While Congress
expressly laid down the condition that only 30% of the total
appropriation for road maintenance should be contracted out, the
President, on the basis of a comprehensive study, believed that
contracting out road maintenance projects at an option of 70% would
be more efficient, economical and practical.
The Special Provision in question is not an inappropriate provision
which can be the subject of a veto. It is not alien to the appropriation
for road maintenance, and on the other hand, it specified how the said
item shall be expended — 70% by administrative and 30% by contract.
The 1987 Constitution allows the addition by Congress of special
provisions, conditions to items in an expenditure bill, which cannot be
vetoed separately from the items to which they relate so long as they
are "appropriate" in the budgetary sense (Art. VII, Sec. 25[2]).
The Solicitor General was hard put in justifying the veto of this special
provision. He merely argued that the provision is a complete turnabout
from an entrenched practice of the government to maximize contract
maintenance (Rollo, G.R. No. 113888, pp. 85-86). That is not a ground
to veto a provision separate from the item to which it refers.
The veto of the second paragraph of Special Provision No. 2 of the
item for the DPWH is therefore unconstitutional.
3. Veto of provision on purchase of medicines by AFP.
In the appropriation for the Armed Forces of the Philippines (AFP), the
President vetoed the special provision on the purchase by the AFP of
medicines in compliance with the Generics Drugs Law (R.A. No. 6675).
The vetoed provision reads:
12. Purchase of Medicines. The purchase of medicines
by all Armed Forces of the Philippines units, hospitals
and clinics shall strictly comply with the formulary
embodied in the National Drug Policy of the
Department of Health (GAA of 1994, p. 748).
According to the President, while it is desirable to subject the purchase
of medicines to a standard formulary, "it is believed more prudent to
provide for a transition period for its adoption and smooth
implementation in the Armed Forces of the Philippines" (Veto
Message, p. 12).
The Special Provision which requires that all purchases of medicines
by the AFP should strictly comply with the formulary embodied in the
National Drug Policy of the Department of Health is an "appropriate"
provision. it is a mere advertence by Congress to the fact that there is
an existing law, the Generics Act of 1988, that requires "the extensive
use of drugs with generic names through a rational system of
procurement and distribution." The President believes that it is more
prudent to provide for a transition period for the smooth implementation
of the law in the case of purchases by the Armed Forces of the
Philippines, as implied by Section 11 (Education Drive) of the law itself.
This belief, however, cannot justify his veto of the provision on the
purchase of medicines by the AFP.
Being directly related to and inseparable from the appropriation item on
purchases of medicines by the AFP, the special provision cannot be
vetoed by the President without also vetoing the said item (Bolinao
Electronics Corporation v. Valencia, 11 SCRA 486 [1964]).
4. Veto of provision on prior approval of Congress for purchase
of military equipment.
In the appropriation for the modernization of the AFP, the President
vetoed the underlined proviso of Special Provision No. 2 on the "Use of
Fund," which requires the prior approval of Congress for the release of
the corresponding modernization funds, as well as the entire Special
Provisions
No. 3 on the "Specific Prohibition":
2. Use of the Fund. Of the amount herein appropriated,
priority shall be given for the acquisition of AFP assets
 necessary for protecting marine, mineral, forest and
other resources within Philippine territorial borders and
its economic zone, detection, prevention or deterrence
of air or surface intrusions and to support diplomatic
moves aimed at preserving national dignity, sovereignty
and patrimony: PROVIDED, That the said
modernization fund shall not be released until a Table
of Organization and Equipment for FY 1994-2000 is
submitted to and approved by Congress.
3. Specific Prohibition. The said Modernization Fund
shall not be used for payment of six (6) additional S-
211 Trainer planes, 18 SF-260 Trainer planes and 150
armored personnel carriers (GAA of 1994, p. 747).
As reason for the veto, the President stated that the said condition and
prohibition violate the Constitutional mandate of non-impairment of
contractual obligations, and if allowed, "shall effectively alter the
original intent of the AFP Modernization Fund to cover all military
equipment deemed necessary to modernize the Armed Forces of the
Philippines" (Veto Message, p. 12).
Petitioners claim that Special Provision No. 2 on the "Use of Fund" and
Special Provision No. 3 are conditions or limitations related to the item
on the AFP modernization plan.
The requirement in Special Provision No. 2 on the "Use of Fund" for
the AFP modernization program that the President must submit all
purchases of military equipment to Congress for its approval, is an
exercise of the "congressional or legislative veto." By way of definition,
a congressional veto is a means whereby the legislature can block or
modify administrative action taken under a statute. It is a form of
legislative control in the implementation of particular executive actions.
The form may be either negative, that is requiring disapproval of the
executive action, or affirmative, requiring approval of the executive
action. This device represents a significant attempt by Congress to
move from oversight of the executive to shared administration (Dixon,
The Congressional Veto and Separation of Powers: The Executive on
a Leash,
56 North Carolina Law Review, 423 [1978]).
A congressional veto is subject to serious questions involving the
principle of separation of powers.
However the case at bench is not the proper occasion to resolve the
issues of the validity of the legislative veto as provided in Special
Provisions Nos. 2 and 3 because the issues at hand can be disposed
of on other grounds. Any provision blocking an administrative action in
implementing a law or requiring legislative approval of executive acts
must be incorporated in a separate and substantive bill. Therefore,
being "inappropriate" provisions, Special Provisions Nos. 2 and 3 were
properly vetoed.
As commented by Justice Irene Cortes in her memorandum as Amicus
Curiae: "What Congress cannot do directly by law it cannot do
indirectly by attaching conditions to the exercise of that power (of the
President as Commander-in-Chief) through provisions in the
appropriation law."
Furthermore, Special Provision No. 3, prohibiting the use of the
Modernization Funds for payment of the trainer planes and armored
personnel carriers, which have been contracted for by the AFP, is
violative of the Constitutional prohibition on the passage of laws that
impair the obligation of contracts (Art. III, Sec. 10), more so, contracts
entered into by the Government itself.
The veto of said special provision is therefore valid.
5. Veto of provision on use of savings to augment AFP pension
funds.
In the appropriation for the AFP Pension and Gratuity Fund, the
President vetoed the new provision authorizing the Chief of Staff to use
savings in the AFP to augment pension and gratuity funds. The vetoed
provision reads:
2. Use of Savings. The Chief of Staff, AFP, is
authorized, subject to the approval of the Secretary of
National Defense, to use savings in the appropriations
provided herein to augment the pension fund being
managed by the AFP Retirement and Separation
 Benefits System as provided under Sections 2(a) and 3
of P.D. No. 361 (GAA of 1994,
p. 746).
According to the President, the grant of retirement and separation
benefits should be covered by direct appropriations specifically
approved for the purpose pursuant to Section 29(1) of Article VI of the
Constitution. Moreover, he stated that the authority to use savings is
lodged in the officials enumerated in Section 25(5) of Article VI of the
Constitution (Veto Message, pp. 7-8).
Petitioners claim that the Special Provision on AFP Pension and
Gratuity Fund is a condition or limitation which is so intertwined with
the item of appropriation that it could not be separated therefrom.
The Special Provision, which allows the Chief of Staff to use savings to
augment the pension fund for the AFP being managed by the AFP
Retirement and Separation Benefits System is violative of Sections
25(5) and 29(1) of the Article VI of the Constitution.
Under Section 25(5), no law shall be passed authorizing any transfer of
appropriations, and under Section 29(1), no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law.
While Section 25(5) allows as an exception the realignment of savings
to augment items in the general appropriations law for the executive
branch, such right must and can be exercised only by the President
pursuant to a specific law.
6. Condition on the deactivation of the CAFGU's.
Congress appropriated compensation for the CAFGU's, including the
payment of separation benefits but it added the following Special
Provision:
1. CAFGU Compensation and Separation Benefit. The
appropriation authorized herein shall be used for the
compensation of CAFGU's including the payment of
their separation benefit not exceeding one (1) year
subsistence allowance for the 11,000 members who will
be deactivated in 1994. The Chief of Staff, AFP, shall,
subject to the approval of the Secretary of National
Defense, promulgate policies and procedures for the
payment of separation benefit (GAA of 1994, p. 740).
The President declared in his Veto Message that the implementation of
this Special Provision to the item on the CAFGU's shall be subject to
prior Presidential approval pursuant to P.D. No. 1597 and R.A.. No.
6758. He gave the following reasons for imposing the condition:
I am well cognizant of the laudable intention of
Congress in proposing the amendment of Special
Provision No. 1 of the CAFGU. However, it is
premature at this point in time of our peace process to
earmark and declare through special provision the
actual number of CAFGU members to be deactivated in
CY 1994. I understand that the number to be
deactivated would largely depend on the result or
degree of success of the on-going peace initiatives
which are not yet precisely determinable today. I have
desisted, therefore, to directly veto said provisions
because this would mean the loss of the entire special
provision to the prejudice of its beneficient provisions. I
therefore declare that the actual implementation of this
special provision shall be subject to prior Presidential
approval pursuant to the provisions of P.D. No. 1597
and
R.A. No. 6758 (Veto Message, p. 13).
Petitioners claim that the Congress has required the deactivation of the
CAFGU's when it appropriated the money for payment of the
separation pay of the members of thereof. The President, however,
directed that the deactivation should be done in accordance to his
timetable, taking into consideration the peace and order situation in the
affected localities.
Petitioners complain that the directive of the President was tantamount
to an administrative embargo of the congressional will to implement the
Constitution's command to dissolve the CAFGU's (Rollo, G.R. No.
113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President
cannot impair or withhold expenditures authorized and appropriated by
Congress when neither the Appropriations Act nor other legislation
authorize such impounding (Rollo, G.R. No. 113888, pp. 15-16).
The Solicitor General contends that it is the President, as Commander-
in-Chief of the Armed Forces of the Philippines, who should determine
when the services of the CAFGU's are no longer needed (Rollo, G.R.
No. 113888,
pp. 92-95.).
This is the first case before this Court where the power of the President
to impound is put in issue. Impoundment refers to a refusal by the
President, for whatever reason, to spend funds made available by
Congress. It is the failure to spend or obligate budget authority of any
type (Notes: Impoundment of Funds, 86 Harvard Law Review 1505
[1973]).
Those who deny to the President the power to impound argue that
once Congress has set aside the fund for a specific purpose in an
appropriations act, it becomes mandatory on the part of the President
to implement the project and to spend the money appropriated
therefor. The President has no discretion on the matter, for the
Constitution imposes on him the duty to faithfully execute the laws.
In refusing or deferring the implementation of an appropriation item, the
President in effect exercises a veto power that is not expressly granted
by the Constitution. As a matter of fact, the Constitution does not say
anything about impounding. The source of the Executive authority must
be found elsewhere.
Proponents of impoundment have invoked at least three principal
sources of the authority of the President. Foremost is the authority to
impound given to him either expressly or impliedly by Congress.
Second is the executive power drawn from the President's role as
Commander-in-Chief. Third is the Faithful Execution Clause which
ironically is the same provision invoked by petitioners herein.
The proponents insist that a faithful execution of the laws requires that
the President desist from implementing the law if doing so would
prejudice public interest. An example given is when through efficient
and prudent management of a project, substantial savings are made.
In such a case, it is sheer folly to expect the President to spend the
entire amount budgeted in the law (Notes: Presidential
Impoundment: Constitutional Theories and Political Realities, 61
Georgetown Law Journal 1295 [1973]; Notes; Protecting the
Fisc: Executive Impoundment and Congressional Power, 82 Yale Law
Journal 1686 [1973).
We do not find anything in the language used in the challenged Special
Provision that would imply that Congress intended to deny to the
President the right to defer or reduce the spending, much less to
deactivate 11,000 CAFGU members all at once in 1994. But even if
such is the intention, the appropriation law is not the proper vehicle for
such purpose. Such intention must be embodied and manifested in
another law considering that it abrades the powers of the Commander-
in-Chief and there are existing laws on the creation of the CAFGU's to
be amended. Again we state: a provision in an appropriations act
cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and
R.A. No. 6758.
7. Condition on the appropriation for the Supreme Court, etc.
(a) In the appropriations for the Supreme Court, Ombudsman, COA,
and CHR, the Congress added the following provisions:
The Judiciary
xxx xxx xxx
Special Provisions
1. Augmentation of any Item in the Court's
Appropriations. Any savings in the appropriations for
the Supreme Court and the Lower Courts may be
utilized by the Chief Justice of the Supreme Court to
augment any item of the Court's appropriations for (a)
printing of decisions and publication of "Philippine
Reports"; (b) Commutable terminal leaves of Justices
and other personnel of the Supreme Court and
payment of adjusted pension rates to retired Justices
entitled thereto pursuant to Administrative Matter No.
91-8-225-C.A.; (c) repair, maintenance, improvement
and other operating expenses of the courts' libraries,
including purchase of books and periodicals; (d)
purchase, maintenance and improvement of printing
equipment; (e) necessary expenses for the employment
of temporary employees, contractual and casual
employees, for judicial administration; (f) maintenance
and improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the
Chief Justice, attendance in international conferences
and conduct of training programs; (h) commutable
transportation and representation allowances and fringe
benefits for Justices, Clerks of Court, Court
Administrator, Chiefs of Offices and other Court
personnel in accordance with the rates prescribed by
law; and (i) compensation of attorney-de-
officio: PROVIDED, That as mandated by LOI No. 489
any increase in salary and allowances shall be subject
to the usual procedures and policies as provided for
under
P.D. No. 985 and other pertinent laws (GAA of 1994, p.
1128; Emphasis supplied).
xxx xxx xxx
Commission on Audit
xxx xxx xxx
5. Use of Savings. The Chairman of the Commission on
Audit is hereby authorized, subject to appropriate
accounting and auditing rules and regulations, to use
savings for the payment of fringe benefits as may be
authorized by law for officials and personnel of the
Commission (GAA of 1994, p. 1161; Emphasis
supplied).
xxx xxx xxx
Office of the Ombudsman
xxx xxx xxx
6. Augmentation of Items in the appropriation of the
Office of the Ombudsman. The Ombudsman is hereby
authorized, subject to appropriate accounting and
auditing rules and regulations to augment items of
appropriation in the Office of the Ombudsman from
savings in other items of appropriation actually
released, for: (a) printing and/or publication of
decisions, resolutions, training and information
materials; (b) repair, maintenance and improvement of
OMB Central and Area/Sectoral facilities; (c) purchase
of books, journals, periodicals and equipment;
(d) payment of commutable representation and
transportation allowances of officials and employees
who by reason of their positions are entitled thereto and
fringe benefits as may be authorized specifically by
law for officials and personnel of OMB pursuant to
Section 8 of Article IX-B of the Constitution; and (e) for
other official purposes subject to accounting and
auditing rules and regulations (GAA of 1994, p. 1174;
Emphasis supplied).
xxx xxx xxx
Commission on Human Rights
xxx xxx xxx
1. Use of Savings. The Chairman of the Commission on
Human Rights (CHR) is hereby authorized, subject to
appropriate accounting and auditing rules and
regulations, to augment any item of appropriation in the
office of the CHR from savings in other items of
appropriations actually released, for: (a) printing and/or
publication of decisions, resolutions, training materials
and educational publications; (b) repair, maintenance
and improvement of Commission's central and regional
 facilities; (c) purchase of books, journals, periodicals
and equipment, (d) payment of commutable
representation and transportation allowances of officials
and employees who by reason of their positions are
entitled thereto and fringe benefits, as may be
authorized by law for officials and personnel of CHR,
subject to accounting and auditing rules and regulations
(GAA of 1994, p. 1178; Emphasis supplied).
In his Veto Message, the President expressed his approval of the
conditions included in the GAA of 1994. He noted that:
The said condition is consistent with the Constitutional
injunction prescribed under Section 8, Article IX-B of
the Constitution which states that "no elective or
appointive public officer or employee shall receive
additional, double, or indirect compensation unless
specifically authorized by law." I am, therefore,
confident that the heads of the said offices shall
maintain fidelity to the law and faithfully adhere to the
well-established principle on compensation
standardization (Veto Message, p. 10).
Petitioners claim that the conditions imposed by the President violated
the independence and fiscal autonomy of the Supreme Court, the
Ombudsman, the COA and the CHR.
In the first place, the conditions questioned by petitioners were placed
in the GAB by Congress itself, not by the President. The Veto Message
merely highlighted the Constitutional mandate that additional or indirect
compensation can only be given pursuant to law.
In the second place, such statements are mere reminders that the
disbursements of appropriations must be made in accordance with law.
Such statements may, at worse, be treated as superfluities.
(b) In the appropriation for the COA, the President imposed the
condition that the implementation of the budget of the COA be subject
to "the guidelines to be issued by the President."
The provisions subject to said condition reads:
xxx xxx xxx
3. Revolving Fund. The income of the Commission on
Audit derived from sources authorized by the
Government Auditing Code of the Philippines (P.D. No.
1445) not exceeding Ten Million Pesos (P10,000,000)
shall be constituted into a revolving fund which shall be
used for maintenance, operating and other incidental
expenses to enhance audit services and audit-related
activities. The fund shall be deposited in an authorized
government depository ban, and withdrawals therefrom
shall be made in accordance with the procedure
prescribed by law and implementing rules and
regulations: PROVIDED,That any interests earned on
such deposit shall be remitted at the end of each
quarter to the national Treasury and shall accrue to the
General Fund: PROVIDED FURTHER, That the
Commission on Audit shall submit to the Department of
Budget and Management a quarterly report of income
and expenditures of said revolving fund (GAA of 1994,
pp. 1160-1161).
The President cited the "imperative need to rationalize" the
implementation, applicability and operation of use of income and
revolving funds. The Veto Message stated:
. . . I have observed that there are old and long existing
special provisions authorizing the use of income and
the creation of revolving funds. As a rule, such
authorizations should be discouraged. However, I take
it that these authorizations have legal/statutory basis
aside from being already a vested right to the agencies
concerned which should not be jeopardized through the
Veto Message. There is, however, imperative need to
rationalize their implementation, applicability and
operation. Thus, in order to substantiate the purpose
and intention of said provisions, I hereby declare that
the operationalization of the following provisions during
budget implementation shall be subject to
 the guidelines to be issued by the President pursuant to
Section 35, Chapter 5, Book VI of E.O. No. 292 and
Sections 65 and 66 of P.D. No. 1445 in relation to
Sections 2 and 3 of the General Provisions of this Act
(Veto Message, p. 6; Emphasis Supplied.)
(c) In the appropriation for the DPWH, the President imposed the
condition that in the implementation of DPWH projects, the
administrative and engineering overhead of 5% and 3% "shall be
subject to the necessary administrative guidelines to be formulated by
the Executive pursuant to existing laws." The condition was imposed
because the provision "needs further study" according to the President.
The following provision was made subject to said condition:
9. Engineering and Administrative Overhead. Not more
than five percent (5%) of the amount for infrastructure
project released by the Department of Budget and
Management shall be deducted by DPWH for
administrative overhead, detailed engineering and
construction supervision, testing and quality control,
and the like, thus insuring that at least ninety-five
percent (95%) of the released fund is available for
direct implementation of the
project. PROVIDED, HOWEVER, That for school
buildings, health centers, day-care centers and
barangay halls, the deductible amount shall not exceed
three percent (3%).
Violation of, or non-compliance with, this provision shall
subject the government official or employee concerned
to administrative, civil and/or criminal sanction under
Sections 43 and 80, Book VI of E.O.
No. 292 (GAA of 1994, p. 786).
(d) In the appropriation for the National Housing Authority (NHA), the
President imposed the condition that allocations for specific projects
shall be released and disbursed "in accordance with the housing
program of the government, subject to prior Executive approval."
The provision subject to the said condition reads:
3. Allocations for Specified Projects. The following
allocations for the specified projects shall be set aside
for corollary works and used exclusively for the repair,
rehabilitation and construction of buildings, roads,
pathwalks, drainage, waterworks systems, facilities and
amenities in the area: PROVIDED, That any road to be
constructed or rehabilitated shall conform with the
specifications and standards set by the Department of
Public Works and Highways for such kind of
road: PROVIDED, FURTHER, That savings that may
be available in the future shall be used for road repair,
rehabilitation and construction:
(1) Maharlika Village
Road — Not less than
P5,000,000
(2) Tenement Housing
Project (Taguig) — Not
less than P3,000,000
(3) Bagong Lipunan
Condominium Project
(Taguig) — Not less
than P2,000,000
4. Allocation of Funds. Out of the amount appropriated
for the implementation of various projects in
resettlement areas, Seven Million Five Hundred
Thousand Pesos (P7,500,000) shall be allocated to the
Dasmariñas Bagong Bayan resettlement area,
Eighteen Million Pesos (P18,000,000) to the Carmona
Relocation Center Area (Gen. Mariano Alvarez) and
Three Million Pesos (P3,000,000) to the Bulihan Sites
and Services, all of which will be for the cementing of
roads in accordance with DPWH standards.
 5. Allocation for Sapang Palay. An allocation of Eight
Million Pesos (P8,000,000) shall be set aside for the
asphalting of seven (7) kilometer main road of Sapang
Palay, San Jose Del Monte, Bulacan
(GAA of 1994, p. 1216).
The President imposed the conditions: (a) that the "operationalization"
of the special provision on revolving funds of the COA "shall be subject
to guidelines to be issued by the President pursuant to Section 35,
Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in
relation to Sections 2 and 3 of the General Provisions of this Act"
(Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision
No. 9 of the DPWH on the mandatory retention of 5% and 3% of the
amounts released by said Department "be subject to the necessary
administrative guidelines to be formulated by the Executive pursuant to
existing law" (Rollo, G.R. No. 113888; pp. 10, 14-16); and (c) that the
appropriations authorized for the NHA can be released only "in
accordance with the housing program of the government subject to
prior Executive approval" (Rollo, G.R. No. 113888, pp. 10-11;
14-16).
The conditions objected to by petitioners are mere reminders that the
implementation of the items on which the said conditions were
imposed, should be done in accordance with existing laws, regulations
or policies. They did not add anything to what was already in place at
the time of the approval of the GAA of 1994.
There is less basis to complain when the President said that the
expenditures shall be subject to guidelines he will issue. Until the
guidelines are issued, it cannot be determined whether they are proper
or inappropriate. The issuance of administrative guidelines on the use
of public funds authorized by Congress is simply an exercise by the
President of his constitutional duty to see that the laws are faithfully
executed (1987 Constitution, Art. VII, Sec. 17; Planas v. Gil 67 Phil. 62
[1939]). Under the Faithful Execution Clause, the President has the
power to take "necessary and proper steps" to carry into execution the
law (Schwartz, On Constitutional Law, p. 147 [1977]). These steps are
the ones to be embodied in the guidelines.
IV
Petitioners chose to avail of the special civil actions but those remedies
can be used only when respondents have acted "without or in excess"
of jurisdiction, or "with grave abuse of discretion," (Revised Rules of
Court,
Rule 65, Section 2). How can we begrudge the President for vetoing
the Special Provision on the appropriation for debt payment when he
merely followed our decision in Gonzales? How can we say that
Congress has abused its discretion when it appropriated a bigger sum
for debt payment than the amount appropriated for education, when it
merely followed our dictum in Guingona?
Article 8 of the Civil Code of Philippines, provides:
Judicial decisions applying or interpreting the laws or
the constitution shall from a part of the legal system of
the Philippines.
The Court's interpretation of the law is part of that law as of the date of
its enactment since the court's interpretation merely establishes the
contemporary legislative intent that the construed law purports to carry
into effect (People v. Licera, 65 SCRA 270 [1975]). Decisions of the
Supreme Court assume the same authority as statutes (Floresca v.
Philex Mining Corporation, 136 SCRA 141 [1985]).
Even if Guingona and Gonzales are considered hard cases that make
bad laws and should be reversed, such reversal cannot nullify prior
acts done in reliance thereof.
WHEREFORE, the petitions are DISMISSED, except with respect to
(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the
annulment of the veto of the special provision on debt service
specifying that the fund therein appropriated "shall be used for
payment of the principal and interest of foreign and domestic
indebtedness" prohibiting the use of the said funds "to pay for the
liabilities of the Central Bank Board of Liquidators", and (2) G.R. No.
113888 only insofar as it prays for the annulment of the veto of: (a) the
second paragraph of Special Provision No. 2 of the item of
appropriation for the Department of Public Works and Highways (GAA
of 1994, pp. 785-786); and (b) Special Provision No. 12 on the
purchase of medicines by the Armed Forces of the Philippines (GAA of
1994, p. 748), which is GRANTED.

SO ORDERED.
G.R. No. 209287 February 3, 2015
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG
ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR,
UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON,
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS
MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY
REPRESENTATIVE; REP. TERRY L. RIDON, KABATAAN
PARTYLIST REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE,
BAYAN MUNA PARTY-LIST REPRESENTATIVE; RENATO M.
REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K.
DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E.
CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR
VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SYJUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF
DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON.
FRANKLIN MAGTUNAO DRILON, IN HIS CAPACITY AS THE
SENATE PRESIDENT OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS
HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT;
AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS
OFFICIAL CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT
FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E.
DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON.
FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT (DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN M.
ABANTE AND REV. JOSE L. GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF
THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT
FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES,
REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF
BUDGET AND MANAGEMENT, REPRESENTED BY SECRETARY
FLORENCIO ABAD; THE DEPARTMENT OF FINANCE,
REPRESENTED BY SECRETARY CESAR V. PURISIMA; AND THE
BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO
DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND
AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-NHA);
MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF
THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE
PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL
PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM
EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR
HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND
MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND
MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE
KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG
MMDA (KKK-MMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE
SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF
THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ACC),
REPRESENTED BY DANTE L. JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO
B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
RESOLUTION
BERSAMIN, J.:
The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude.1
Before the Court are the Motion for Reconsideration2 filed by the
respondents, and the Motion for Partial Reconsideration3 filed by the
petitioners in G.R. No. 209442.
In their Motion for Reconsideration, the respondents assail the
decision4 promulgated on July 1 2014 upon the following procedural
and substantive errors, viz:
PROCEDURAL
I
WITHOUT AN ACTUAL CASE OR CONTROVERSY, ALLEGATIONS
OF GRAVE ABUSE OF DISCRETION ON THE PART OF ANY
INSTRUMENTALITY OF THE GOVERNMENT CANNOT CONFER ON
THIS HONORABLE COURT THE POWER TO DETERMINE THE
CONSTITUTIONALITY OF THE DAP AND NBC NO. 541
II
PETITIONERS’ ACTIONS DO NOT PRESENT AN ACTUAL CASE OR
CONTROVERSY AND THEREFORE THIS HONORABLE COURT DID
NOT ACQUIRE JURISDICTION
III
PETITIONERS HAVE NEITHER BEEN INJURED NOR THREATENED
WITH INJURY AS A RESULT OF THE OPERATION OF THE DAP
AND THEREFORE SHOULD HAVE BEEN HELD TO HAVE NO
STANDING TO BRING THESE SUITS FOR CERTIORARI AND
PROHIBITION
IV
NOR CAN PETITIONERS’ STANDING BE SUSTAINED ON THE
GROUND THAT THEY ARE BRINGING THESE SUITS AS CITIZENS
AND AS TAXPAYERS
V considering that savings is defined in the General Appropriations Act
THE DECISION OF THIS HONORABLE COURT IS NOT BASED ON
A CONSIDERATION OF THE ACTUAL APPLICATIONS OF THE DAP
IN 116 CASES BUT SOLELY ON AN ABSTRACT CONSIDERATION
OF NBC NO. 5415
SUBSTANTIVE
I
THE EXECUTIVE DEPARTMENT PROPERLY INTERPRETED
"SAVINGS" UNDER THE RELEVANT PROVISIONS OF THE GAA
II
ALL DAP APPLICATIONS HAVE APPROPRIATION COVER
III
THE PRESIDENT HAS AUTHORITY TO TRANSFER SAVINGS TO
OTHER DEPARTMENTS PURSUANT TO HIS CONSTITUTIONAL
POWERS
IV
THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT REVENUE
COLLECTIONS FROM EACH SOURCE OF REVENUE
ENUMERATED IN THE BUDGET PROPOSAL MUST EXCEED THE
CORRESPONDING REVENUE TARGET
V
THE OPERATIVE FACT DOCTRINE WAS WRONGLY APPLIED6
The respondents maintain that the issues in these consolidated cases
were mischaracterized and unnecessarily constitutionalized; that the
Court’s interpretation of savings can be overturned by legislation
(GAA), hence making savings a statutory issue;7 that the withdrawn
unobligated allotments and unreleased appropriations constitute
savings and may be used for augmentation;8 and that the Court should
apply legally recognized norms and principles, most especially the
presumption of good faith, in resolving their motion.9
On their part, the petitioners in G.R. No. 209442 pray for the partial
reconsideration of the decision on the ground that the Court thereby:
FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL
MONEYS UNDER THE DISBURSEMENT ACCELERATION
PROGRAM (DAP) USED FOR ALLEGED AUGMENTATION OF
APPROPRIATION ITEMS THAT DID NOT HAVE ACTUAL
DEFICIENCIES10
They submit that augmentation of items beyond the maximum amounts
recommended by the President for the programs, activities and
projects (PAPs) contained in the budget submitted to Congress should
be declared unconstitutional.
Ruling of the Court
We deny the motion for reconsideration of the petitioners in G.R. No.
209442, and partially grant the motion for reconsideration of the
respondents.
The procedural challenges raised by the respondents, being a mere
rehash of their earlier arguments herein, are dismissed for being
already passed upon in the assailed decision.
As to the substantive challenges, the Court discerns that the grounds
are also reiterations of the arguments that were already thoroughly
discussed and passed upon in the assailed decision. However, certain
declarations in our July 1, 2014 Decision are modified in order to clarify
certain matters and dispel further uncertainty.
1.
The Court’s power of judicial review
The respondents argue that the Executive has not violated the GAA
because savings as a conceptis an ordinary species of interpretation
that calls for legislative, instead of judicial, determination.11
This argument cannot stand.
The consolidated petitions distinctly raised the question of the
constitutionality of the acts and practices under the DAP, particularly
their non-conformity with Section 25(5), Article VI of the Constitution
and the principles of separation of power and equal protection. Hence,
the matter is still entirely within the Court’s competence, and its
determination does not pertain to Congress to the exclusion of the
Court. Indeed, the interpretation of the GAA and its definition of
savings is a foremost judicial function. This is because the power of
judicial review vested in the Court is exclusive. As clarified in Endencia
and Jugo v. David:12
Under our system of constitutional government, the Legislative
department is assigned the power to make and enact laws. The
Executive department is charged with the execution of carrying out of
the provisions of said laws. But the interpretation and application of
said laws belong exclusively to the Judicial department. And this
authority to interpret and apply the laws extends to the Constitution.
Before the courts can determine whether a law is constitutional or not,
it will have to interpret and ascertain the meaning not only of said law,
but also of the pertinent portion of the Constitution in order to decide
whether there is a conflict between the two, because if there is, then
the law will have to give way and has to be declared invalid and
unconstitutional.
xxxx
We have already said that the Legislature under our form of
government is assigned the task and the power to make and enact
laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the
sphere of the Legislative department. If the Legislature may declare
what a law means, or what a specific portion of the Constitution means,
especially after the courts have in actual case ascertain its meaning by
interpretation and applied it in a decision, this would surely cause
confusion and instability in judicial processes and court decisions.
Under such a system, a final court determination of a case based on a
judicial interpretation of the law of the Constitution may be undermined
or even annulled by a subsequent and different interpretation of the law
or of the Constitution by the Legislative department. That would be
neither wise nor desirable, besides being clearly violative of the
fundamental, principles of our constitutional system of government,
particularly those governing the separation of powers.13
The respondents cannot also ignore the glaring fact that the petitions
primarily and significantly alleged grave abuse of discretion on the part
of the Executive in the implementation of the DAP. The resolution of
the petitions thus demanded the exercise by the Court of its
aforedescribed power of judicial review as mandated by the
Constitution.
2.
Strict construction on the accumulation and utilization of savings
The decision of the Court has underscored that the exercise of the
power to augment shall be strictly construed by virtue of its being an
exception to the general rule that the funding of PAPs shall be limited authorized to augment any item in the general appropriations law for
to the amount fixed by Congress for the purpose.14 Necessarily, their respective offices from savings in other items of their respective
savings, their utilization and their management will also be strictly appropriations.
construed against expanding the scope of the power to
augment.15 Such a strict interpretation is essential in order to keep the xxxx
Executive and other budget implementors within the limits of their
prerogatives during budget execution, and to prevent them from unduly Section 38 and Section 39, Chapter 5, Book VI of the Administrative
transgressing Congress’ power of the purse.16 Hence, regardless of the Code provide:
perceived beneficial purposes of the DAP, and regardless of whether
the DAP is viewed as an effective tool of stimulating the national
Section 38. Suspension of Expenditure of Appropriations. - Except as
economy, the acts and practices under the DAP and the relevant
otherwise provided in the General Appropriations Act and whenever in
provisions of NBC No. 541 cited in the Decision should remain illegal
his judgment the public interest so requires, the President, upon notice
and unconstitutional as long as the funds used to finance the projects
to the head of office concerned, is authorized to suspend or otherwise
mentioned therein are sourced from savings that deviated from the
stop further expenditure of funds allotted for any agency, or any other
relevant provisions of the GAA, as well as the limitation on the power to
expenditure authorized in the General Appropriations Act, except for
augment under Section 25(5), Article VI of the Constitution. In a society
personal services appropriations used for permanent officials and
governed by laws, even the best intentions must come within the
employees.
parameters defined and set by the Constitution and the law. Laudable
purposes must be carried out through legal methods.17
Section 39. Authority to Use Savings in Appropriations to Cover
Deficits.—Except as otherwise provided in the General Appropriations
Respondents contend, however, that withdrawn unobligated allotments
Act, any savings in the regular appropriations authorized in the General
and unreleased appropriations under the DAP are savings that may be
Appropriations Act for programs and projects of any department, office
used for augmentation, and that the withdrawal of unobligated
or agency, may, with the approval of the President, be used to cover a
allotments were made pursuant to Section 38 Chapter 5, Book VI of
deficit in any other item of the regular appropriations: Provided, that the
the Administrative Code;18 that Section 38 and Section 39, Chapter 5,
creation of new positions or increase of salaries shall not be allowed to
Book VI of the Administrative Code are consistent with Section 25(5),
be funded from budgetary savings except when specifically authorized
Article VI of the Constitution, which, taken together, constitute "a
by law: Provided, further, that whenever authorized positions are
framework for which economic managers of the nation may pull various
transferred from one program or project to another within the same
levers in the form of authorization from Congress to efficiently steer the
department, office or agency, the corresponding amounts appropriated
economy towards the specific and general purposes of the GAA;"19 and
for personal services are also deemed transferred, without, however
that the President’s augmentation of deficient items is in accordance
increasing the total outlay for personal services of the department,
with the standing authority issued by Congress through Section 39.
office or agency concerned. (Bold underscoring supplied for emphasis)
Section 25(5), Article VI of the Constitution states:
In the Decision, we said that:
Section 25. x x x x x x x
Unobligated allotments, on the other hand, were encompassed by the
first part of the definition of "savings" in the GAA, that is, as "portions or
5) No law shall be passed authorizing any transfer of appropriations; balances of any programmed appropriation in this Act free from any
however, the President, the President of the Senate, the Speaker of obligation or encumbrance." But the first part of the definition was
the House of Representatives, the Chief Justice of the Supreme Court, further qualified by the three enumerated instances of when savings
and the heads of Constitutional Commissions may, by law, be
would be realized. As such, unobligated allotments could not be
indiscriminately declared as savings without first determining whether
any of the three instances existed. This signified that the DBM’s
withdrawal of unobligated allotments had disregarded the definition of
savings under the GAAs.
xxxx
The respondents rely on Section 38, Chapter 5, Book VI of the
Administrative Code of 1987 to justify the withdrawal of unobligated
allotments. But the provision authorized only the suspension or
stoppage of further expenditures, not the withdrawal of unobligated
allotments, to wit:
xxxx
Moreover, the DBM did not suspend or stop further expenditures in
accordance with Section 38, supra, but instead transferred the funds to
other PAPs.20
We now clarify.
Section 38 refers to the authority of the President "to suspend or
otherwise stop further expenditure of funds allotted for any agency, or
any other expenditure authorized in the General Appropriations Act."
When the President suspends or stops expenditure of funds, savings
are not automatically generated until it has been established that such
funds or appropriations are free from any obligation or encumbrance,
and that the work, activity or purpose for which the appropriation is
authorized has been completed, discontinued or abandoned.
It is necessary to reiterate that under Section 5.7 of NBC No. 541, the
withdrawn unobligated allotments may be:
5.7.1 Reissued for the original programs and projects of the
agencies/OUs concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs
and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency
and to fund priority programs and projects not considered in the 2012
budget but expected to be started or implemented during the current
year.
Although the withdrawal of unobligated allotments may have effectively
resulted in the suspension or stoppage of expenditures through the
issuance of negative Special Allotment Release Orders (SARO), the
reissuance of withdrawn allotments to the original programs and
projects is a clear indication that the program or project from which the
allotments were withdrawn has not been discontinued or abandoned.
Consequently, as we have pointed out in the Decision, "the purpose for
which the withdrawn funds had been appropriated was not yet fulfilled,
or did not yet cease to exist, rendering the declaration of the funds as
savings impossible."21 In this regard, the withdrawal and transfer of
unobligated allotments remain unconstitutional. But then, whether the
withdrawn allotments have actually been reissued to their original
programs or projects is a factual matter determinable by the proper
tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541
which shortened the availability of appropriations for MOOE and capital
outlays, and those which were transferred to PAPs that were not
determined to be deficient, are still constitutionally infirm and invalid.
At this point, it is likewise important to underscore that the reversion to
the General Fund of unexpended balances of appropriations – savings
included – pursuant to Section 28 Chapter IV, Book VI of the
Administrative Code22 does not apply to the Constitutional Fiscal
Autonomy Group (CFAG), which include the Judiciary, Civil Service
Commission, Commission on Audit, Commission on Elections,
Commission on Human Rights, and the Office of the Ombudsman. The
reason for this is that the fiscal autonomy enjoyed by the CFAG –
x x x contemplates a guarantee of full flexibility to allocate and utilize
their resources with the wisdom and dispatch that their needs require.
It recognizes the power and authority to levy, assess and collect fees,
fix rates of compensation not exceeding the highest rates authorized
by law for compensation and pay plans of the government and allocate
and disburse such sums as may be provided by law or prescribed by
them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme
Court says it needs 100 typewriters but DBM rules we need only 10
typewriters and sends its recommendations to Congress without even
informing us, the autonomy given by the Constitution becomes an
empty and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman
must have the independence and flexibility needed in the discharge of
their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of
our constitutional system is based. x x x23
On the other hand, Section 39 is evidently in conflict with the plain text
of Section 25(5), Article VI of the Constitution because it allows the
President to approve the use of any savings in the regular
appropriations authorized in the GAA for programs and projects of any
department, office or agency to cover a deficit in any other item of the
regular appropriations. As such, Section 39 violates the mandate of
Section 25(5) because the latter expressly limits the authority of the
President to augment an item in the GAA to only those in his own
Department out of the savings in other items of his own Department’s
appropriations. Accordingly, Section 39 cannot serve as a valid
authority to justify cross-border transfers under the DAP.
Augmentations under the DAP which are made by the Executive within
its department shall, however, remain valid so long as the requisites
under Section 25(5) are complied with.
In this connection, the respondents must always be reminded that the
Constitution is the basic law to which all laws must conform. No act
that conflicts with the Constitution can be valid.24 In Mutuc v.
Commission on Elections,25therefore, we have emphasized the
importance of recognizing and bowing to the supremacy of the
Constitution:
x x x The concept of the Constitution as the fundamental law, setting
forth the criterion for the validity of any public act whether proceeding
from the highest official or the lowest functionary, is a postulate of our
system of government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in the legal
hierarchy. The three departments of government in the discharge of
the functions with which it is [sic] entrusted have no choice but to yield
obedience to its commands. Whatever limits it imposes must be
observed. Congress in the enactment of statutes must ever be on
guard lest the restrictions on its authority, whether substantive or
formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the
law to the facts as found in deciding cases, the judiciary is called upon
to maintain inviolate what is decreed by the fundamental law. Even its
power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary
of this basic principle that the Constitution is paramount. It overrides
any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have
reminded that: – The role of the Constitution cannot be overlooked. It is
through the Constitution that the fundamental powers of government
are established, limited and defined, and by which these powers are
distributed among the several departments. The Constitution is the
basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer.
Constitutional doctrines must remain steadfast no matter what may be
the tides of time. It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the whims and
caprices of government and the people who run it.27
3.
The power to augment cannot be used to fund non-existent provisions
in the GAA
The respondents posit that the Court has erroneously invalidated all
the DAP-funded projects by overlooking the difference between an
item and an allotment class, and by concluding that they do not have
appropriation cover; and that such error may induce Congress and the
Executive (through the DBM) to ensure that all items should have at
least ₱1 funding in order to allow augmentation by the President.28
At the outset, we allay the respondents’ apprehension regarding the
validity of the DAP funded projects. It is to be emphatically indicated
that the Decision did not declare the en masse invalidation of the 116
DAP-funded projects. To be sure, the Court recognized the
encouraging effects of the DAP on the country’s economy,29 and
acknowledged its laudable purposes, most especially those directed
towards infrastructure development and efficient delivery of basic
social services.30 It bears repeating that the DAP is a policy instrument
that the Executive, by its own prerogative, may utilize to spur economic
growth and development.
Nonetheless, the Decision did find doubtful those projects that
appeared to have no appropriation cover under the relevant GAAs on
the basis that: (1) the DAP funded projects that originally did not
contain any appropriation for some of the expense categories
(personnel, MOOE and capital outlay); and (2) the appropriation code
and the particulars appearing in the SARO did not correspond with the
program specified in the GAA. The respondents assert, however, that
there is no constitutional requirement for Congress to create allotment
classes within an item. What is required is for Congress to create items
to comply with the line-item veto of the President.31
After a careful reexamination of existing laws and jurisprudence, we
find merit in the respondents’ argument.
Indeed, Section 25(5) of the 1987 Constitution mentions of the term
item that may be the object of augmentation by the President, the
Senate President, the Speaker of the House, the Chief Justice, and the
heads of the Constitutional Commissions. In Belgica v. Ochoa,32 we
said that an item that is the distinct and several part of the
appropriation bill, in line with the item-veto power of the President,
must contain "specific appropriations of money" and not be only
general provisions, thus:
For the President to exercise his item-veto power, it necessarily follows
that there exists a proper "item" which may be the object of the veto.
An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of
Justice of the Philippine Islands, the US Supreme Court characterized
an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in
itself, is a specific appropriation of money, not some general provision
of law which happens to be put into an appropriation bill. (Emphases
supplied)
On this premise, it may be concluded that an appropriation bill, to
ensure that the President may be able to exercise his power of item
veto, must contain "specific appropriations of money" and notonly
"general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must
be an item characterized by singular correspondence – meaning an
allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item." This treatment not only
allows the item to be consistent with its definition as a "specific
appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the
existing Calamity Fund, Contingent Fund and the Intelligence Fund,
being appropriations which state a specified amount for a specific
purpose, would then be considered as "line-item" appropriations which
are rightfully subject to item veto. Likewise, it must be observed that an
appropriation may be validly apportioned into component percentages
or values; however, it is crucial that each percentage or value must be
allocated for its own corresponding purpose for such component to be
considered as a proper line-item. Moreover, as Justice Carpio correctly
pointed out, a valid appropriation may even have several related
purposes that are by accounting and budgeting practice considered as
one purpose, e.g., MOOE (maintenance and other operating
expenses), in which case the related purposes shall be deemed
sufficiently specific for the exercise of the President‘s item veto power.
Finally, special purpose funds and discretionary funds would equally
square with the constitutional mechanism of item-veto for as long as
they follow the rule on singular correspondence as herein discussed. x
x x (Emphasis supplied)33
Accordingly, the item referred to by Section 25(5) of the Constitution is
the last and indivisible purpose of a program in the appropriation law,
which is distinct from the expense category or allotment class. There is
no specificity, indeed, either in the Constitution or in the relevant GAAs
that the object of augmentation should be the expense category or
allotment class. In the same vein, the President cannot exercise his
veto power over an expense category; he may only veto the item to
which that expense category belongs to.
Further, in Nazareth v. Villar,34 we clarified that there must be an
existing item, project or activity, purpose or object of expenditure with
an appropriation to which savings may be transferred for the purpose
of augmentation. Accordingly, so long as there is an item in the GAA
for which Congress had set aside a specified amount of public fund,
savings may be transferred thereto for augmentation purposes. This
interpretation is consistent not only with the Constitution and the GAAs,
but also with the degree of flexibility allowed to the Executive during
budget execution in responding to unforeseeable contingencies.
Nonetheless, this modified interpretation does not take away the cave
at that only DAP projects found in the appropriate GAAs may be the
subject of augmentation by legally accumulated savings. Whether or
not the 116 DAP-funded projects had appropriation cover and were
validly augmented require factual determination that is not within the
scope of the present consolidated petitions under Rule 65.
4.
Cross-border transfers are constitutionally impermissible
The respondents assail the pronouncement of unconstitutionality of
cross-border transfers made by the President. They submit that
Section 25(5), Article VI of the Constitution prohibits only the transfer of
appropriation, not savings. They relate that cross-border transfers have
been the practice in the past, being consistent with the President’s role
as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however, the Court
stands by its pronouncement, and will not brook any strained
interpretations.
5.
Unprogrammed funds may only be released upon proof that the total
revenues exceeded the target
Based on the 2011, 2012 and 2013 GAAs, the respondents contend
that each source of revenue in the budget proposal must exceed the
respective target to authorize release of unprogrammed funds.
Accordingly, the Court’s ruling thereon nullified the intention of the
authors of the unprogrammed fund, and renders useless the special
provisions in the relevant GAAs.36
The respondents’ contentions are without merit.
To recall, the respondents justified the use of unprogrammed funds by
submitting certifications from the Bureau of Treasury and the
Department of Finance (DOF) regarding the dividends derived from the
shares of stock held by the Government in government-owned and
controlled corporations.37 In the decision, the Court has held that the
requirement under the relevant GAAs should be construed in light of
the purpose for which the unprogrammed funds were denominated as
"standby appropriations." Hence, revenue targets should be
considered as a whole, not individually; otherwise, we would be dealing
with artificial revenue surpluses. We have even cautioned that the
release of unprogrammed funds based on the respondents’ position
could be unsound fiscal management for disregarding the budget plan
and fostering budget deficits, contrary to the Government’s surplus
budget policy.38
While we maintain the position that aggregate revenue collection must
first exceed aggregate revenue target as a pre-requisite to the use of
unprogrammed funds, we clarify the respondents’ notion that the
release of unprogrammed funds may only occur at the end of the fiscal
year.
There must be consistent monitoring as a component of the budget
accountability phase of every agency’s performance in terms of the
agency’s budget utilization as provided in Book VI, Chapter 6, Section
51 and Section 52 of the Administrative Code of 1987,which state:
SECTION 51. Evaluation of Agency Performance.—The President,
through the Secretary shall evaluate on a continuing basis the
quantitative and qualitative measures of agency performance as
reflected in the units of work measurement and other indicators of
agency performance, including the standard and actual costs per unit
of work.
SECTION 52. Budget Monitoring and Information System.—The
Secretary of Budget shall determine accounting and other items of
information, financial or otherwise, needed to monitor budget
performance and to assess effectiveness of agencies’ operations and
shall prescribe the forms, schedule of submission, and other
components of reporting systems, including the maintenance of
subsidiary and other records which will enable agencies to accomplish
and submit said information requirements: Provided, that the
Commission on Audit shall, in coordination with the Secretary of
Budget, issue rules and regulations that may be applicable when the
reporting requirements affect accounting functions of agencies:
Provided, further, that the applicable rules and regulations shall be
issued by the Commission on Audit within a period of thirty (30) days
after the Department of Budget and Management prescribes the
reporting requirements.
Pursuant to the foregoing, the Department of Budget and Management
(DBM) and the Commission on Audit (COA) require agencies under
various joint circulars to submit budget and financial accountability
reports (BFAR) on a regular basis,39 one of which is the Quarterly
Report of Income or Quarterly Report of Revenue and Other
Receipts.40 On the other hand, as Justice Carpio points out in his
Separate Opinion, the Development Budget Coordination Committee
(DBCC) sets quarterly revenue targets for aspecific fiscal year.41 Since
information on both actual revenue collections and targets are made
available every quarter, or at such time as the DBM may prescribe,
actual revenue surplus may be determined accordingly and eleases
from the unprogrammed fund may take place even prior to the end of
the fiscal year.42
In fact, the eleventh special provision for unprogrammed funds in the
2011 GAA requires the DBM to submit quarterly reports stating the
details of the use and releases from the unprogrammed funds, viz:
11. Reportorial Requirement. The DBM shall submit to the House
Committee on Appropriations and the Senate Committee on Finance
separate quarterly reports stating the releases from the
Unprogrammed Fund, the amounts released and purposes thereof,
and the recipient departments, bureaus, agencies or offices, GOCCs
and GFIs, including the authority under which the funds are released
under Special Provision No. 1 of the Unprogrammed Fund.
Similar provisions are contained in the 2012 and 2013 GAAs.43
However, the Court’s construction of the provision on unprogrammed
funds is a statutory, not a constitutional, interpretation of an ambiguous
phrase. Thus, the construction should be given prospective effect.44
6.
The presumption of good faith stands despite the obiter
pronouncement
The remaining concern involves the application of the operative fact
doctrine.
The respondents decry the misapplication of the operative fact
doctrine, stating:
110. The doctrine of operative fact has nothing to do with the potential
liability of persons who acted pursuant to a then-constitutional statute,
order, or practice. They are presumed to have acted in good faith and
the court cannot load the dice, so to speak, by disabling possible
defenses in potential suits against so-called "authors, proponents and
implementors." The mere nullification are still deemed valid on the
theory that judicial nullification is a contingent or unforeseen event.
111. The cases before us are about the statutory and constitutional
interpretations of so-called acts and practices under a government
program, DAP. These are not civil, administrative, or criminal actions
against the public officials responsible for DAP, and any statement
about bad faith may be unfairly and maliciously exploited for political
ends. At the same time, any negation of the presumption of good faith,
which is the unfortunate implication of paragraphs 3 and 4 of page 90
of the Decision, violates the constitutional presumption of innocence,
and is inconsistent with the Honorable Court’s recognition that "the
implementation of the DAP yielded undeniably positive results that
enhanced the economic welfare of the country."
112. The policy behind the operative fact doctrine is consistent with the
idea that regardless of the nullification of certain acts and practices
under the DAP and/or NBC No. 541, it does not operate to impute bad
faith to authors, proponents and implementors who continue to enjoy
the presumption of innocence and regularity in the performance of
official functions and duties. Good faith is presumed, whereas bad faith
requires the existence of facts. To hold otherwise would send a chilling
effect to all public officers whether of minimal or significant discretion,
the result of which would be a dangerous paralysis of bureaucratic
activity.45 (Emphasis supplied)
In the speech he delivered on July 14, 2014, President Aquino III also
expressed the view that in applying the doctrine of operative fact, the
Court has already presumed the absence of good faith on the part of
the authors, proponents and implementors of the DAP, so that they
would have to prove good faith during trial.46
Hence, in their Motion for Reconsideration, the respondents now urge
that the Court should extend the presumption of good faith in favor of
the President and his officials who co-authored, proposed or
implemented the DAP.47
The paragraphs 3 and 4 of page 90 of the Decision alluded to by the
respondents read:
Nonetheless, as Justice Brion has pointed out during the deliberations,
the doctrine of operative fact does not always apply, and is not always
the consequence of every declaration of constitutional invalidity. It can
be invoked only in situations where the nullification of the effects of
what used to be a valid law would result in inequity and injustice; but
where no such result would ensue, the general rule that an
unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative
fact can apply only to the PAPs that can no longer be undone, and
whose beneficiaries relied in good faith on the validity of the DAP, but
cannot apply to the authors, proponents and implementors of the DAP,
unless there are concrete findings of good faith in their favor by the
proper tribunals determining their criminal, civil, administrative and
other liabilities.48 (Bold underscoring is supplied)
The quoted text of paragraphs 3 and 4 shows that the Court has
neither thrown out the presumption of good faith nor imputed bad faith
to the authors, proponents and implementors of the DAP. The contrary
is true, because the Court has still presumed their good faith by
pointing out that "the doctrine of operative fact xxx cannot apply to the
authors, proponents and implementors of the DAP, unless there are
concrete findings of good faith in their favor by the proper tribunals
determining their criminal, civil, administrative and other liabilities."
Note that the proper tribunals can make "concrete findings of good faith
in their favor" only after a full hearing of all the parties in any given
case, and such a hearing can begin to proceed only after according all
the presumptions, particularly that of good faith, by initially requiring the
complainants, plaintiffs or accusers to first establish their complaints or
charges before the respondent authors, proponents and implementors
of the DAP.
It is equally important to stress that the ascertainment of good faith, or
the lack of it, and the determination of whether or not due diligence and
prudence were exercised, are questions of fact.49 The want of good
faith is thus better determined by tribunals other than this Court, which
is not a trier of facts.50
For sure, the Court cannot jettison the presumption of good faith in this
or in any other case. The presumption is a matter of law. It has had a
1âwphi 1
long history. Indeed, good faith has long been established as a legal
principle even in the heydays of the Roman Empire.51In Soriano v.
Marcelo,52 citing Collantes v. Marcelo,53 the Court emphasizes the
necessity of the presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the
Chapter on Human Relations of the Civil Code directs every person,
inter alia, to observe good faith which springs from the fountain of good
conscience. Specifically, a public officer is presumed to have acted in
good faith in the performance of his duties. Mistakes committed by a
public officer are not actionable absent any clear showing that they
were motivated by malice or gross negligence amounting to bad faith.
"Bad faith" does not simply connote bad moral judgment or negligence.
There must be some dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of a sworn duty through some
motive or intent or ill will. It partakes of the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive design
or some motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue
injury to any party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the discharge of his
functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v.
Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of "good faith" or
"regular performance of official duty", yet these presumptions are
disputable and may be contradicted and overcome by other evidence.
Many civil actions are oriented towards overcoming any number of
these presumptions, and a cause of action can certainly be geared
towards such effect. The very purpose of trial is to allow a party to
present evidence to overcome the disputable presumptions involved.
Otherwise, if trial is deemed irrelevant or unnecessary, owing to the
perceived indisputability of the presumptions, the judicial exercise
would be relegated to a mere ascertainment of what presumptions
apply in a given case, nothing more. Consequently, the entire Rules of
Court is rendered as excess verbiage, save perhaps for the provisions
laying down the legal presumptions.
Relevantly, the authors, proponents and implementors of the DAP,
being public officers, further enjoy the presumption of regularity in the
performance of their functions. This presumption is necessary because
they are clothed with some part of the sovereignty of the State, and
because they act in the interest of the public as required by law.55
However, the presumption may be disputed.56
At any rate, the Court has agreed during its deliberations to extend to
the proponents and implementors of the DAP the benefit of the
doctrine of operative fact. This is because they had nothing to do at all
with the adoption of the invalid acts and practices.
7.
The PAPs under the DAP remain effective under the operative fact
doctrine
As a general rule, the nullification of an unconstitutional law or act
carries with it the illegality of its effects. However, in cases where
nullification of the effects will result in inequity and injustice, the
operative fact doctrine may apply.57In so ruling, the Court has
essentially recognized the impact on the beneficiaries and the country
as a whole if its ruling would pave the way for the nullification of the
₱144.378 Billions58 worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind the
disastrous impact of nullifying these projects by virtue alone of the
invalidation of certain acts and practices under the DAP, the Court has
upheld the efficacy of such DAP-funded projects by applying the
operative fact doctrine. For this reason, we cannot sustain the Motion
for Partial Reconsideration of the petitioners in G.R. No. 209442.
IN VIEW OF THE FOREGOING, and SUBJECT TO THE
FOREGOING CLARIFICATIONS, the Court PARTIALLY GRANTS the
Motion for Reconsideration filed by the respondents, and DENIES the
Motion for Partial Reconsideration filed by the petitioners in G.R. No.
209442 for lack of merit.
ACCORDINGLY, the dispositive portion of the Decision promulgated
on July 1, 2014 is hereby MODIFIED as follows:
WHEREFORE, the Court PARTIALLY GRANTS the petitions for
certiorari and prohibition; and DECLARES the following acts and
practices under the Disbursement Acceleration Program, National
Budget Circular No. 541 and related executive issuances
UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI
of the 1987 Constitution and the doctrine of separation of powers,
namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year without complying
with the statutory definition of savings contained in the General
Appropriations Acts; and
 (b) The cross-border transfers of the savings of the Executive
to augment the appropriations of other offices outside the
Executive.

The Court further DECLARES VOID the use of unprogrammed funds

despite the absence of a certification by the National Treasurer that the
revenue collections exceeded the revenue targets for non-compliance
with the conditions provided in the relevant General Appropriations
Acts.

SO ORDERED.
G.R. No. 162230 April 28, 2010
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN,
MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,
LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA
MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEÑA, EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA,
ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M.
GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT, BELEN A.
CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA
C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA
CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA
A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A.
BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M.
BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S.
TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA M.
CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L.
TURLA, et al. In their capacity and as members of the “Malaya Lolas
Organization”, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO,
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA
DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as
those asserted by plaintiffs in these actions, exchanged full compensation
of plaintiffs for a future peace. History has vindicated the wisdom of that
bargain. And while full compensation for plaintiffs’ hardships, in the purely
economic sense, has been denied these former prisoners and countless
other survivors of the war, the immeasurable bounty of life for themselves
and their posterity in a free society and in a more peaceful world services
the debt.1
There is a broad range of vitally important areas that must be regularly
decided by the Executive Department without either challenge or
interference by the Judiciary. One such area involves the delicate arena of
foreign relations. It would be strange indeed if the courts and the executive
spoke with different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the lapse of more
than 60 years since the conduct complained of, we make no attempt to lay
down general guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to reach a
decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of
Court with an application for the issuance of a writ of preliminary
mandatory injunction against the Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs (DFA), the Secretary of the
Department of Justice (DOJ), and the Office of the Solicitor General
(OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-
profit organization registered with the Securities and Exchange
Commission, established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the Second
World War.
Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the
destruction of the village. Their communities were bombed, houses were
looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them
in houses or cells, where they were repeatedly raped, beaten, and abused
by Japanese soldiers. As a result of the actions of their Japanese
tormentors, the petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and emotional suffering. 2
Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in
filing a claim against the Japanese officials and military officers who
ordered the establishment of the “comfort women” stations in the
Philippines. However, officials of the Executive Department declined to
assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by
Japan’s compliance with the Peace Treaty between the Philippines and
Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or
excess of discretion in refusing to espouse their claims for the crimes
against humanity and war crimes committed against them; and (b) compel
the respondents to espouse their claims for official apology and other
forms of reparations against Japan before the International Court of
Justice (ICJ) and other international tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the
comfort women system established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime against humanity, 3 sexual
slavery,4 and torture.5 They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is
possible; as such, in waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan, the Philippine
government is in breach of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners assert that the Philippine
government’s acceptance of the “apologies” made by Japan as well as
funds from the Asian Women’s Fund (AWF) were contrary to international
law.
Respondents’ Arguments
Respondents maintain that all claims of the Philippines and its nationals
relative to the war were dealt with in the San Francisco Peace Treaty of
1951 and the bilateral Reparations Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers
for the damage and suffering caused by it during the war. Nevertheless it
is also recognized that the resources of Japan are not presently sufficient,
if it is to maintain a viable economy, to make complete reparation for all
such damage and suffering and at the present time meet its other
obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers
waive all reparations claims of the Allied Powers, other claims of the Allied
Powers and their nationals arising out of any actions taken by Japan and
its nationals in the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.
In addition, respondents argue that the apologies made by Japan 8 have
been satisfactory, and that Japan had addressed the individual claims of
the women through the atonement money paid by the Asian Women’s
Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking.
In December 1937, Japanese military forces captured the city of Nanking
in China and began a “barbaric campaign of terror” known as the Rape of
Nanking, which included the rapes and murders of an estimated 20,000 to
80,000 Chinese women, including young girls, pregnant mothers, and
elderly women.9
In reaction to international outcry over the incident, the Japanese
government sought ways to end international condemnation10 by
establishing the “comfort women” system. Under this system, the military
could simultaneously appease soldiers’ sexual appetites and contain
soldiers’ activities within a regulated environment.11 Comfort stations
would also prevent the spread of venereal disease among soldiers and
discourage soldiers from raping inhabitants of occupied territories. 12
Daily life as a comfort woman was “unmitigated misery.” 13 The military
forced victims into barracks-style stations divided into tiny cubicles where
they were forced to live, sleep, and have sex with as many 30 soldiers per
day.14 The 30 minutes allotted for sexual relations with each soldier were
30-minute increments of unimaginable horror for the women.15 Disease
was rampant.16 Military doctors regularly examined the women, but these
checks were carried out to prevent the spread of venereal diseases; little
notice was taken of the frequent cigarette burns, bruises, bayonet stabs
and even broken bones inflicted on the women by soldiers.
Fewer than 30% of the women survived the war.17 Their agony continued
in having to suffer with the residual physical, psychological, and emotional
scars from their former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of shame, never
returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to
accept legal responsibility and pay compensatory damages for the comfort
women system were through a series of lawsuits, discussion at the United
Nations (UN), resolutions by various nations, and the Women’s
International Criminal Tribunal. The Japanese government, in turn,
responded through a series of public apologies and the creation of the
AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first
lawsuit in Japan by former comfort women against the Japanese
government. The Tokyo District Court however dismissed their
case.20 Other suits followed,21 but the Japanese government has, thus far,
successfully caused the dismissal of every case.22
Undoubtedly frustrated by the failure of litigation before Japanese courts,
victims of the comfort women system brought their claims before the
United States (US). On September 18, 2000, 15 comfort women filed a
class action lawsuit in the US District Court for the District of
Columbia23 “seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during World War II,” in
violation of “both positive and customary international law.” The case was
filed pursuant to the Alien Tort Claims Act (“ATCA”),24 which allowed the
plaintiffs to sue the Japanese government in a US federal district
court.25 On October 4, 2001, the district court dismissed the lawsuit due to
lack of jurisdiction over Japan, stating that “[t]here is no question that this
court is not the appropriate forum in which plaintiffs may seek to reopen x
x x discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs’ claims are non-justiciable and must be
dismissed.”
The District of Columbia Court of Appeals affirmed the lower court’s
dismissal of the case.26 On appeal, the US Supreme Court granted the
women’s petition for writ of certiorari, vacated the judgment of the District
of Columbia Court of Appeals, and remanded the case. 27 On remand, the
Court of Appeals affirmed its prior decision, noting that “much as we may
feel for the plight of the appellants, the courts of the US simply are not
authorized to hear their case.”28 The women again brought their case to
the US Supreme Court which denied their petition for writ of certiorari on
February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual
Slavery by Japan (KCWS), submitted a petition to the UN Human Rights
Commission (UNHRC), asking for assistance in investigating crimes
committed by Japan against Korean women and seeking reparations for
former comfort women.29 The UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the issue’s special investigator. In
1996, Coomaraswamy issued a Report reaffirming Japan’s responsibility
in forcing Korean women to act as sex slaves for the imperial army, and
made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the
Japanese Imperial Army during the Second World War was a violation of
its obligations under international law and accept legal responsibility for
that violation;
(b) Pay compensation to individual victims of Japanese military sexual
slavery according to principles outlined by the Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation for
victims of grave violations of human rights and fundamental freedoms. A
special administrative tribunal for this purpose should be set up with a
limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession
with regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese military
sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to
reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the
recruitment and institutionalization of comfort stations during the Second
World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities, also presented a
report to the Sub-Committee on June 22, 1998 entitled Contemporary
Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like
Practices During Armed Conflict. The report included an appendix entitled
An Analysis of the Legal Liability of the Government of Japan for ‘Comfort
Women Stations’ established during the Second World War, 30which
contained the following findings:
68. The present report concludes that the Japanese Government remains
liable for grave violations of human rights and humanitarian law, violations
that amount in their totality to crimes against humanity. The Japanese
Government’s arguments to the contrary, including arguments that seek to
attack the underlying humanitarian law prohibition of enslavement and
rape, remain as unpersuasive today as they were when they were first
raised before the Nuremberg war crimes tribunal more than 50 years ago.
In addition, the Japanese Government’s argument that Japan has already
settled all claims from the Second World War through peace treaties and
reparations agreements following the war remains equally unpersuasive.
This is due, in large part, to the failure until very recently of the Japanese
Government to admit the extent of the Japanese military’s direct
involvement in the establishment and maintenance of these rape centres.
The Japanese Government’s silence on this point during the period in
which peace and reparations agreements between Japan and other Asian
Governments were being negotiated following the end of the war must, as
a matter of law and justice, preclude Japan from relying today on these
peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of
women continue to be undervalued. Sadly, this failure to address crimes of
a sexual nature committed on a massive scale during the Second World
War has added to the level of impunity with which similar crimes are
committed today. The Government of Japan has taken some steps to
apologize and atone for the rape and enslavement of over 200,000 women
and girls who were brutalized in “comfort stations” during the Second
World War. However, anything less than full and unqualified acceptance
by the Government of Japan of legal liability and the consequences that
flow from such liability is wholly inadequate. It must now fall to the
Government of Japan to take the necessary final steps to provide
adequate redress.
The UN, since then, has not taken any official action directing Japan to
provide the reparations sought.
Women’s International War Crimes
Tribunal
The Women’s International War Crimes Tribunal (WIWCT) was a “people’s
tribunal” established by a number of Asian women and human rights
organizations, supported by an international coalition of non-governmental
organizations.31 First proposed in 1998, the WIWCT convened in Tokyo in
2000 in order to “adjudicate Japan’s military sexual violence, in particular
the enslavement of comfort women, to bring those responsible for it to
justice, and to end the ongoing cycle of impunity for wartime sexual
violence against women.”
After examining the evidence for more than a year, the “tribunal” issued its
verdict on December 4, 2001, finding the former Emperor Hirohito and the
State of Japan guilty of crimes against humanity for the rape and sexual
slavery of women.32 It bears stressing, however, that although the tribunal
included prosecutors, witnesses, and judges, its judgment was not legally
binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California,
along with six co-sponsor representatives, introduced House Resolution
121 which called for Japanese action in light of the ongoing struggle for
closure by former comfort women. The Resolution was formally passed on
July 30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of
Japan (1) should formally acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its Imperial Armed
Forces’ coercion of young women into sexual slavery, known to the world
as “comfort women”, during its colonial and wartime occupation of Asia
and the Pacific Islands from the 1930s through the duration of World War
II; (2) would help to resolve recurring questions about the sincerity and
status of prior statements if the Prime Minister of Japan were to make such
an apology as a public statement in his official capacity; (3) should clearly
and publicly refute any claims that the sexual enslavement and trafficking
of the “comfort women” for the Japanese Imperial Army never occurred;
and (4) should educate current and future generations about this horrible
crime while following the recommendations of the international community
with respect to the “comfort women.”34
In December 2007, the European Parliament, the governing body of the
European Union, drafted a resolution similar to House Resolution
121.35 Entitled, “Justice for Comfort Women,” the resolution demanded: (1)
a formal acknowledgment of responsibility by the Japanese government;
(2) a removal of the legal obstacles preventing compensation; and (3)
unabridged education of the past. The resolution also stressed the
urgency with which Japan should act on these issues, stating: “the right of
individuals to claim reparations against the government should be
expressly recognized in national law, and cases for reparations for the
survivors of sexual slavery, as a crime under international law, should be
prioritized, taking into account the age of the survivors.”
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada’s resolution demands the Japanese
government to issue a formal apology, to admit that its Imperial Military
coerced or forced hundreds of thousands of women into sexual slavery,
and to restore references in Japanese textbooks to its war crimes. 36 The
Dutch parliament’s resolution calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei
Kono.
The Foreign Affairs Committee of the United Kingdom’s Parliament also
produced a report in November, 2008 entitled, “Global Security: Japan and
Korea” which concluded that Japan should acknowledge the pain caused
by the issue of comfort women in order to ensure cooperation between
Japan and Korea.
Statements of Remorse made by representatives of the Japanese
government
Various officials of the Government of Japan have issued the following
public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of
wartime “comfort women” since December 1991. I wish to announce the
findings as a result of that study.
As a result of the study which indicates that comfort stations were
operated in extensive areas for long periods, it is apparent that there
existed a great number of comfort women. Comfort stations were operated
in response to the request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the establishment
and management of the comfort stations and the transfer of comfort
women. The recruitment of the comfort women was conducted mainly by
private recruiters who acted in response to the request of the military. The
Government study has revealed that in many cases they were recruited
against their own will, through coaxing coercion, etc., and that, at times,
administrative/military personnel directly took part in the recruitments.
They lived in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war
areas, excluding those from Japan, those from the Korean Peninsula
accounted for a large part. The Korean Peninsula was under Japanese
rule in those days, and their recruitment, transfer, control, etc., were
conducted generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities
of the day, that severely injured the honor and dignity of many women.
The Government of Japan would like to take this opportunity once again to
extend its sincere apologies and remorse to all those, irrespective of place
of origin, who suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider
seriously, while listening to the views of learned circles, how best we can
express this sentiment.
We shall face squarely the historical facts as described above instead of
evading them, and take them to heart as lessons of history. We hereby
reiterated our firm determination never to repeat the same mistake by
forever engraving such issues in our memories through the study and
teaching of history.
As actions have been brought to court in Japan and interests have been
shown in this issue outside Japan, the Government of Japan shall
continue to pay full attention to this matter, including private researched
related thereto.
b) Prime Minister Tomiichi Murayama’s Statement in 1994
On the issue of wartime “comfort women”, which seriously stained the
honor and dignity of many women, I would like to take this opportunity
once again to express my profound and sincere remorse and apologies”
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a
large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies
and remorse to all the women who endured immeasurable and painful
experiences and suffered incurable physical and psychological wounds as
comfort women.
I believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past
history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing that
Japan carried out such acts in the past and inflicted suffering on the
people of other countries, especially in Asia, the Members of this House
hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently
as well, and to the press. I have been consistent. I will stand by the Kono
Statement. This is our consistent position. Further, we have been
apologizing sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former Prime
Ministers, including Prime Ministers Koizumi and Hashimoto, have issued
letters to the comfort women. I would like to be clear that I carry the same
feeling. This has not changed even slightly. (Excerpt from Remarks by
Prime Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and
it is as stated in the statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe at the Budget Committee,
the House of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered
hardships, and I have expressed my apologies for the extremely agonizing
circumstances into which they were placed. (Excerpt from Telephone
Conference by Prime Minister Abe to President George W. Bush, April 3,
2007).
I have to express sympathy from the bottom of my heart to those people
who were taken as wartime comfort women. As a human being, I would
like to express my sympathies, and also as prime minister of Japan I need
to apologize to them. My administration has been saying all along that we
continue to stand by the Kono Statement. We feel responsible for having
forced these women to go through that hardship and pain as comfort
women under the circumstances at the time. (Excerpt from an interview
article “A Conversation with Shinzo Abe” by the Washington Post, April 22,
2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in
sympathy to all those who suffered extreme hardships as comfort women;
and I expressed my apologies for the fact that they were forced to endure
such extreme and harsh conditions. Human rights are violated in many
parts of the world during the 20th Century; therefore we must work to
make the 21st Century a wonderful century in which no human rights are
violated. And the Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister Abe’s remarks at
the Joint Press Availability after the summit meeting at Camp David
between Prime Minister Abe and President Bush, April 27, 2007).
The Asian Women’s Fund
Established by the Japanese government in 1995, the AWF represented
the government’s concrete attempt to address its moral responsibility by
offering monetary compensation to victims of the comfort women
system.37 The purpose of the AWF was to show atonement of the
Japanese people through expressions of apology and remorse to the
former wartime comfort women, to restore their honor, and to demonstrate
Japan’s strong respect for women.38
The AWF announced three programs for former comfort women who
applied for assistance: (1) an atonement fund paying ¥2 million
(approximately $20,000) to each woman; (2) medical and welfare support
programs, paying ¥2.5-3 million ($25,000-$30,000) for each woman; and
(3) a letter of apology from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF
provided ¥700 million (approximately $7 million) for these programs in
South Korea, Taiwan, and the Philippines; ¥380 million (approximately
$3.8 million) in Indonesia; and ¥242 million (approximately $2.4 million) in
the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs
for former comfort women. Over the next five years, these were
implemented by the Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the
Executive Department committed grave abuse of discretion in not
espousing petitioners’ claims for official apology and other forms of
reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the
exclusive prerogative to determine whether to espouse petitioners’ claims
against Japan.
Baker v. Carr39 remains the starting point for analysis under the political
question doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on question.
In Tañada v. Cuenco,40 we held that political questions refer “to those
questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not
legality of a particular measure.”
Certain types of cases often have been found to present political
questions.41 One such category involves questions of foreign relations. It is
well-established 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.”42 The US Supreme Court has further
cautioned that decisions relating to foreign policy are delicate, complex,
and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare
they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility. 43
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements.44 However, the question
whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts but
to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US
Supreme Court held that “[t]he President is the sole organ of the nation in
its external relations, and its sole representative with foreign relations.”
It is quite apparent that if, in the maintenance of our international relations,
embarrassment—perhaps serious embarrassment—is to be avoided and
success for our aims achieved, congressional legislation which is to be
made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom
from statutory restriction which would not be admissible where domestic
affairs alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign countries,
and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular and
other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary46 and Pimentel v. Executive Secretary;47 its
overreaching principle was, perhaps, best articulated in (now Chief)
Justice Puno’s dissent in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information
and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine, the presidential
role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.
The Executive Department has determined that taking up petitioners’
cause would be inimical to our country’s foreign policy interests, and could
disrupt our relations with Japan, thereby creating serious implications for
stability in this region. For us to overturn the Executive Department’s
determination would mean an assessment of the foreign policy judgments
by a coordinate political branch to which authority to make that judgment
has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace with
Japan. And it is equally true that, since time immemorial, when negotiating
peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own,
treating them as national assets, and as counters, `chips’, in international
bargaining. Settlement agreements have lumped, or linked, claims deriving
from private debts with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set off against
concessions in the other, or against larger political considerations
unrelated to debts.49
Indeed, except as an agreement might otherwise provide, international
settlements generally wipe out the underlying private claims, thereby
terminating any recourse under domestic law. In Ware v. Hylton,50 a case
brought by a British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and
that after peace is concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever be revived, or brought into
contest again. All violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried in oblivion; and
all those things are implied by the very treaty of peace; and therefore not
necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during the
war, by any of the United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis
supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,51 the US
Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals
of one country against the government of another country are “sources of
friction” between the two sovereigns. United States v. Pink, 315 U.S. 203,
225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties,
nations have often entered into agreements settling the claims of their
respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the
government of another “are established international practice reflecting
traditional international theory.” L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle, the United States
has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries. x x x Under such agreements, the
President has agreed to renounce or extinguish claims of United States
nationals against foreign governments in return for lump-sum payments or
the establishment of arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants themselves,
since a claimant’s only hope of obtaining any payment at all might lie in
having his Government negotiate a diplomatic settlement on his behalf.
But it is also undisputed that the “United States has sometimes disposed
of the claims of its citizens without their consent, or even without
consultation with them, usually without exclusive regard for their interests,
as distinguished from those of the nation as a whole.” Henkin, supra, at
262-263. Accord, Restatement (Second) of Foreign Relations Law of the
United States § 213 (1965) (President “may waive or settle a claim against
a foreign state x x x [even] without the consent of the [injured] national”). It
is clear that the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering
caused by Japanese aggression during the war, not for the payment of
adequate reparations, but for security purposes. The treaty sought to
prevent the spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised individual
claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of
Japanese slave labor during the war.52 In a consolidated case in the
Northern District of California,53 the court dismissed the lawsuits filed,
relying on the 1951 peace treaty with Japan,54 because of the following
policy considerations:
The official record of treaty negotiations establishes that a fundamental
goal of the agreement was to settle the reparations issue once and for all.
As the statement of the chief United States negotiator, John Foster Dulles,
makes clear, it was well understood that leaving open the possibility of
future claims would be an unacceptable impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The
present peace is no exception.
On the one hand, there are claims both vast and just. Japan’s aggression
caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently
reduced to four home islands which are unable to produce the food its
people need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations
should be sharply limited was informed by the experience of six years of
United States-led occupation of Japan. During the occupation the
Supreme Commander of the Allied Powers (SCAP) for the region, General
Douglas MacArthur, confiscated Japanese assets in conjunction with the
task of managing the economic affairs of the vanquished nation and with a
view to reparations payments. It soon became clear that Japan’s financial
condition would render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that “[t]he use of reparations as a weapon
to retard the reconstruction of a viable economy in Japan should be
combated with all possible means” and “recommended that the
reparations issue be settled finally and without delay.”
That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:
Obviously insistence upon the payment of reparations in any proportion
commensurate with the claims of the injured countries and their nationals
would wreck Japan’s economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create misery and chaos in
which the seeds of discontent and communism would flourish. In short, [it]
would be contrary to the basic purposes and policy of x x x the United
States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not
lie. As a general principle—and particularly here, where such an
extraordinary length of time has lapsed between the treaty’s conclusion
and our consideration—the Executive must be given ample discretion to
assess the foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the petitioners and
those of the Republic, and decide on that basis if apologies are sufficient,
and whether further steps are appropriate or necessary.
The Philippines is not under any international obligation to espouse
petitioners’ claims.
In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has been
when the individual is able to persuade a government to bring a claim on
the individual’s behalf.55 Even then, it is not the individual’s rights that are
being asserted, but rather, the state’s own rights. Nowhere is this position
more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law. The question, therefore, whether
the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from
this standpoint. Once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of the latter the State
is sole claimant.56
Since the exercise of diplomatic protection is the right of the State, reliance
on the right is within the absolute discretion of states, and the decision
whether to exercise the discretion may invariably be influenced by political
considerations other than the legal merits of the particular claim. 57 As
clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on whose behalf it is
acting consider that their rights are not adequately protected, they have no
remedy in international law. All they can do is resort to national law, if
means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position
internationally.58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will
be granted, to what extent it is granted, and when will it cease. It retains, in
this respect, a discretionary power the exercise of which may be
determined by considerations of a political or other nature, unrelated to the
particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that “the right of
diplomatic protection belongs to or vests in the State,” 59 (ii) affirm its
discretionary nature by clarifying that diplomatic protection is a “sovereign
prerogative” of the State;60 and (iii) stress that the state “has the right to
exercise diplomatic protection on behalf of a national. It is under no duty or
obligation to do so.”61
It has been argued, as petitioners argue now, that the State has a duty to
protect its nationals and act on his/her behalf when rights are
injured.62 However, at present, there is no sufficient evidence to establish
a general international obligation for States to exercise diplomatic
protection of their own nationals abroad.63 Though, perhaps desirable,
neither state practice nor opinio juris has evolved in such a direction. If it is
a duty internationally, it is only a moral and not a legal duty, and there is
no means of enforcing its fulfillment.64
We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary
international law.65However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand the imputation of
individual criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable
duty to institute proceedings against Japan. Indeed, precisely because of
states’ reluctance to directly prosecute claims against another state, recent
developments support the modern trend to empower individuals to directly
participate in suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the
strong policy arguments warranting such a rule, the practice of states does
not yet support the present existence of an obligation to prosecute
international crimes.67 Of course a customary duty of prosecution is ideal,
but we cannot find enough evidence to reasonably assert its existence. To
the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de
factoimpunity to those who commit crimes against humanity.” 68
Even the invocation of jus cogens norms and erga omnes obligations will
not alter this analysis. Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have not deigned to show that
the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes is an erga omnes obligation
or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law
has been used as a legal term describing obligations owed by States
towards the community of states as a whole. The concept was recognized
by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a
State towards the international community as a whole, and those arising
vis-à-vis another State in the field of diplomatic protection. By their very
nature, the former are the concern of all States. In view of the importance
of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law … others are conferred by international instruments of a
universal or quasi-universal character.
The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries
of those sharing a belief in the emergence of a value-based international
public order. However, as is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of obligations erga omnes as a
legal concept, its full potential remains to be realized in practice.69
The term is closely connected with the international law concept of jus
cogens. In international law, the term “jus cogens” (literally, “compelling
law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit derogation,
and can be modified only by general international norms of equivalent
authority.70
Early strains of the jus cogens doctrine have existed since the 1700s, 71 but
peremptory norms began to attract greater scholarly attention with the
publication of Alfred von Verdross’s influential 1937 article, Forbidden
Treaties in International Law.72 The recognition of jus cogens gained even
more force in the 1950s and 1960s with the ILC’s preparation of the
Vienna Convention on the Law of Treaties (VCLT). 73 Though there was a
consensus that certain international norms had attained the status of jus
cogens,74 the ILC was unable to reach a consensus on the proper criteria
for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the
ILC concluded ruefully in 1963 that “there is not as yet any generally
accepted criterion by which to identify a general rule of international law as
having the character of jus cogens.”75 In a commentary accompanying the
draft convention, the ILC indicated that “the prudent course seems to be to
x x x leave the full content of this rule to be worked out in State practice
and in the jurisprudence of international tribunals.” 76 Thus, while the
existence of jus cogens in international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of petitioners, and we
cannot begin to comprehend the unimaginable horror they underwent at
the hands of the Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the petitioners
appear to be without a remedy to challenge those that have offended them
before appropriate fora. Needless to say, our government should take the
lead in protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive
Department to take up the petitioners’ cause. Ours is only the power
to urge and exhort the Executive Department to take up petitioners’
cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,
vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES,
SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN
and COMMISSIONERS OF THE NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI
ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG,
EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO,
LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M.
DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-
BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D.
LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES,
DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON
BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO,
TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI,
DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY,
BAY INAY DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA
HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY,
DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES
D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S.
ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO
CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-
VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING
DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN,
VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES,
ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B.
GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR
DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO
ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS,
SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-
CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S.
SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB,
SALVADOR TIONGSON, VENANCIO APANG, MADION MALID,
SUKIM MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P.
BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA
MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA,
RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M.
GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO
M. MALUDAO, MINORS MARICEL MALID, represented by her
father CORNELIO MALID, MARCELINO M. LADRA, represented by
her father MONICO D. LADRA, JENNYLYN MALID, represented by
her father TONY MALID, ARIEL M. EVANGELISTA, represented by
her mother LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN
BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN
FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION
FOR THE CONSERVATION OF NATURAL RESOURCES,
INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for
prohibition and mandamus as citizens and taxpayers, assailing the
constitutionality of certain provisions of Republic Act No. 8371 (R.A.
8371), otherwise known as the Indigenous Peoples Rights Act of 1997
(IPRA), and its Implementing Rules and Regulations (Implementing
Rules).
In its resolution of September 29, 1998, the Court required
respondents to comment.1 In compliance, respondents Chairperson and
Commissioners of the National Commission on Indigenous Peoples
(NCIP), the government agency created under the IPRA to implement
its provisions, filed on October 13, 1998 their Comment to the Petition,
in which they defend the constitutionality of the IPRA and pray that the
petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of
Environment and Natural Resources (DENR) and Secretary of the
Department of Budget and Management (DBM) filed through the
Solicitor General a consolidated Comment. The Solicitor General is of
the view that the IPRA is partly unconstitutional on the ground that it
grants ownership over natural resources to indigenous peoples and
prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen.
Juan Flavier, one of the authors of the IPRA, Mr. Ponciano Bennagen,
a member of the 1986 Constitutional Commission, and the leaders and
members of 112 groups of indigenous peoples (Flavier, et. al), filed
their Motion for Leave to Intervene. They join the NCIP in defending
the constitutionality of IPRA and praying for the dismissal of the
petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise
filed a Motion to Intervene and/or to Appear as Amicus Curiae. The
CHR asserts that IPRA is an expression of the principle of parens
patriae and that the State has the responsibility to protect and
guarantee the rights of those who are at a serious disadvantage like
indigenous peoples. For this reason it prays that the petition be
dismissed.
On March 23, 1999, another group, composed of the Ikalahan
Indigenous People and the Haribon Foundation for the Conservation of
Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene
with attached Comment-in-Intervention. They agree with the NCIP and
Flavier, et al. that IPRA is consistent with the Constitution and pray that
the petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations
were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties
and intervenors filed their respective memoranda in which they
reiterate the arguments adduced in their earlier pleadings and during
the hearing.
Petitioners assail the constitutionality of the following provisions of the
IPRA and its Implementing Rules on the ground that they amount to an
unlawful deprivation of the State’s ownership over lands of the public
domain as well as minerals and other natural resources therein, in
violation of the regalian doctrine embodied in Section 2, Article XII of
the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral
domains, and Section 3(b) which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral
domains including inalienable public lands, bodies of water, mineral
and other resources found within ancestral domains are private but
community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the
composition of ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous
peoples in the harvesting, extraction, development or exploration of
minerals and other natural resources within the areas claimed to be
their ancestral domains, and the right to enter into agreements with
nonindigenous peoples for the development and utilization of natural
resources therein for a period not exceeding 25 years, renewable for
not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to
maintain, develop, protect and conserve the ancestral domains and
portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected
areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing
definition of "ancestral domains" and "ancestral lands" which might
even include private lands found within said areas, Sections 3(a) and
3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the
powers and jurisdiction of the NCIP and making customary law
applicable to the settlement of disputes involving ancestral domains
and ancestral lands on the ground that these provisions violate the due
process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of
delineation and recognition of ancestral domains and which
vest on the NCIP the sole authority to delineate ancestral
domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the
NCIP that a particular area is an ancestral domain and upon
notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and
Local Governments, Secretary of Justice and Commissioner of
the National Development Corporation, the jurisdiction of said
officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions
and practices of indigenous peoples shall be applied first with
respect to property rights, claims of ownership, hereditary
succession and settlement of land disputes, and that any doubt
or ambiguity in the interpretation thereof shall be resolved in
favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices
shall be used to resolve disputes involving indigenous peoples;
and
 "(5) Section 66 which vests on the NCIP the jurisdiction over all
claims and disputes involving rights of the indigenous
peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of
the NCIP Administrative Order No. 1, series of 1998, which provides
that "the administrative relationship of the NCIP to the Office of the
President is characterized as a lateral but autonomous relationship for
purposes of policy and program coordination." They contend that said
Rule infringes upon the President’s power of control over executive
departments under Section 17, Article VII of the Constitution.6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59,
63, 65 and 66 and other related provisions of R.A. 8371 are
unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the
Chairperson and Commissioners of the NCIP to cease and
desist from implementing the assailed provisions of R.A. 8371
and its Implementing Rules;
"(3) The issuance of a writ of prohibition directing the Secretary
of the Department of Environment and Natural Resources to
cease and desist from implementing Department of
Environment and Natural Resources Circular No. 2, series of
1998;
"(4) The issuance of a writ of prohibition directing the Secretary
of Budget and Management to cease and desist from
disbursing public funds for the implementation of the assailed
provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the
Secretary of Environment and Natural Resources to comply
with his duty of carrying out the State’s constitutional mandate
to control and supervise the exploration, development,
utilization and conservation of Philippine natural resources."7
After due deliberation on the petition, the members of the Court voted
as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an
opinion, which the Chief Justice and Justices Bellosillo, Quisumbing,
and Santiago join, sustaining the validity of the challenged provisions
of R.A. 8371. Justice Puno also filed a separate opinion sustaining all
challenged provisions of the law with the exception of Section 1, Part II,
Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules
and Regulations Implementing the IPRA, and Section 57 of the IPRA
which he contends should be interpreted as dealing with the large-
scale exploitation of natural resources and should be read in
conjunction with Section 2, Article XII of the 1987 Constitution. On the
other hand, Justice Mendoza voted to dismiss the petition solely on the
ground that it does not raise a justiciable controversy and petitioners
do not have standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition.
Justice Panganiban filed a separate opinion expressing the view that
Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371
are unconstitutional. He reserves judgment on the constitutionality of
Sections 58, 59, 65, and 66 of the law, which he believes must await
the filing of specific cases by those whose rights may have been
violated by the IPRA. Justice Vitug also filed a separate opinion
expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are
unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and
De Leon join in the separate opinions of Justices Panganiban and
Vitug.
As the votes were equally divided (7 to 7) and the necessary majority
was not obtained, the case was redeliberated upon. However, after
redeliberation, the voting remained the same. Accordingly, pursuant to
Rule 56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
Attached hereto and made integral parts thereof are the separate
opinions of Justices Puno, Vitug, Kapunan, Mendoza, and Panganiban.
SO ORDERED.
 UDK-15143, January 21, 2015

IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL

INDEPENDENCE AND FISCAL AUTONOMY MOVEMENT v. ABOLITION
OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF
FISCAL AUTONOMY.

RESOLUTION

LEONEN, J.:

This case involves the proposed bills abolishing the Judiciary Development
Fund1 and replacing it with the “Judiciary Support Fund.” Funds collected
from the proposed Judiciary Support Fund shall be remitted to the national
treasury and Congress shall determine how the funds will be used.2 chan rob lesvi rtual lawlib rary

Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of

mandamus in order to compel this court to exercise its judicial independence
and fiscal autonomy against the perceived hostility of Congress.3 chan roblesv irt uallawl ibra ry

This matter was raised to this court through the letter4 dated August 27,
2014, signed by Mijares and addressed to the Chief Justice and the Associate
Justices of the Supreme Court. The letter is captioned: cha nRoblesvi rt ual La wlibra ry

Petition for Mandamus with Manifestation to invoke the Judicial

Independence and Fiscal Autonomy as mandated under the Constitution5
The letter was referred to the Clerk of Court En Banc for appropriate
action.6 It was then docketed as UDK-15143.7 chanroblesv irtuallawl ib rary

In the letter-petition, Mijares alleges that he is “a Filipino citizen, and a

concerned taxpayer[.]”8 He filed this petition as part of his “continuing
crusade to defend and uphold the Constitution”9 because he believes in the
rule of law.10 He is concerned about the threats against the judiciary after
this court promulgated Priority Development Assistance Fund11 case on
November 19, 2013 and Disbursement Acceleration Program12 case on July
1, 2014.
The complaint implied that certain acts of members of Congress and the
President after the promulgation of these cases show a threat to judicial
independence.
In the first week of July 2014, Ilocos Norte Representative Rodolfo Fariñas
filed House Bill No. 4690, which would require this court to remit its
Judiciary Development Fund collections to the national treasury.13
A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed
House Bill No. 4738 entitled “The Act Creating the Judicial Support Fund
(JSF) under the National Treasury, repealing for the purpose Presidential
Decree No. 1949.”14 chanrob lesvi rtua llawlib ra ry
On the same day, President Benigno Simeon C. Aquino III addressed the
nation:chanRoblesvi rt ual Lawlib rary
My message to the Supreme Court: We do not want two equal branches of
government to go head to head, needing a third branch to step in to
intervene. We find it difficult to understand your decision. You had done
something similar in the past, and you tried to do it again; there are even
those of the opinion that what you attempted to commit was graver, if we
were to base it on your decision. Abiding by the principle of “presumption of
regularity,” we assumed that you did the right thing; after all, you are the
ones who should ostensibly have a better understanding of the law. And
now, when we use the same mechanism—which, you yourselves have
admitted, benefit our countrymen—why is it then that we are wrong?
We believe that the majority of you, like us, want only the best for the
Filipino people. To the honorable justices of the Supreme Court: Help us help
our countrymen. We ask that you review your decision, this time taking into
consideration the points I have raised tonight. The nation hopes for your
careful deliberation and response. And I hope that once you’ve examined the
arguments I will submit, regarding the law and about our economy,
solidarity will ensue—thus strengthening the entire government’s capability
to push for the interests of the nation.15
The issue for resolution is whether petitioner Rolly Mijares has sufficiently
shown grounds for this court to grant the petition and issue a writ of
mandamus.
Petitioner argues that Congress “gravely abused its discretion with a blatant
usurpation of judicial independence and fiscal autonomy of the Supreme
Court.”16 chanroblesv irt uallawl ibra ry
Petitioner points out that Congress is exercising its power “in an arbitrary
chanrob lesvi rtua llawlib ra ry
and despotic manner by reason of passion or personal hostility by abolishing
the ‘Judiciary Development Fund’ (JDF) of the Supreme Court.”17 chanroblesv irt uallawl ibra ry
With regard to his prayer for the issuance of the writ of mandamus,
petitioner avers that Congress should not act as “wreckers of the law”18 by
threatening “to clip the powers of the High Tribunal[.]”19 Congress
committed a “blunder of monumental proportions”20 when it reduced the
judiciary’s 2015 budget.21 c han roblesv irt uallawl ibrary
Petitioner prays that this court exercise its powers to “REVOKE/ABROGATE
and EXPUNGE whatever irreconcilable contravention of existing laws
affecting the judicial independence and fiscal autonomy as mandated under
the Constitution to better serve public interest and general welfare of the
people.”22cha nrob lesvi rtua llawlib ra ry
This court resolves to deny the petition.
The power of judicial review, like all powers granted by the Constitution, is
subject to certain limitations. Petitioner must comply with all the requisites
for judicial review before this court may take cognizance of the case. The
requisites are: chanRoble svi rtual Lawli bra ry
(1) there must be an actual case or controversy calling for the
exercise of judicial power;
(2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and
(4) the issue of constitutionality must be the very lis mota of the
case.23
Petitioner’s failure to comply with the first two requisites warrants the
outright dismissal of this petition.
I
The petition does not comply with the requisites of judicial review
No actual case or controversy
Article VIII, Section 1 of the Constitution provides that: chanRobl esvirt ual Lawlib rary
 ARTICLE VIII
Judicial Department
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. (Emphasis supplied)
One of the requirements for this court to exercise its power of judicial review
is the existence of an actual controversy. This means that there must be “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.”24 As emphasized by this court in Information Technology
Foundation of the Phils. v. Commission on Elections:25
It is well-established in this jurisdiction that “. . . for a court to exercise its
power of adjudication, there must be an actual case or controversy — one
which involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be moot or academic or
based on extra-legal or other similar considerations not cognizable by a
court of justice. . . . [C]ourts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging.”
The controversy must be justiciable — definite 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
and not a merely 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.26
For this court to rule on constitutional issues, there must first be a justiciable
controversy. Pleadings before this court must show a violation of an existing
legal right or a controversy that is ripe for judicial determination. In the
concurring opinion in Belgica v. Ochoa: chanRoblesvirtual Lawli bra ry
Basic in litigation raising constitutional issues is the requirement that there
must be an actual case or controversy. This Court cannot render an advisory
opinion. We assume that the Constitution binds all other constitutional
departments, instrumentalities, and organs. We are aware that in the
exercise of their various powers, they do interpret the text of the
Constitution in the light of contemporary needs that they should address. A
policy that reduces this Court to an adviser for official acts by the other
departments that have not yet been done would unnecessarily tax our
resources. It is inconsistent with our role as final arbiter and adjudicator and
weakens the entire system of the Rule of Law. Our power of judicial review
is a duty to make a final and binding construction of law. This power should
generally be reserved when the departments have exhausted any and all
acts that would remedy any perceived violation of right. The rationale that
defines the extent of our doctrines laying down exceptions to our rules on
justiciability are clear: Not only should the pleadings show a convincing
violation of a right, but the impact should be shown to be so grave,
imminent, and irreparable that any delayed exercise of judicial review or
deference would undermine fundamental principles that should be enjoyed
by the party complaining or the constituents that they legitimately
represent.27 (Emphasis supplied)
The reason for this requirement was explained in Angara v. Electoral
Commission:28
Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government.29
Petitioner’s allegations show that he wants this court to strike down the
proposed bills abolishing the Judiciary Development Fund. This court,
however, must act only within its powers granted under the Constitution.
This court is not empowered to review proposed bills because a bill is not a
law.
Montesclaros v. COMELEC30 involved the postponement of the 2002
Sangguniang Kabataan Elections and the lowering of the age requirement in
the Sangguniang Kabataan “to at least 15 but not more than 18 years of
age.”31 Montesclaros and other parties filed a petition for certiorari,
prohibition, and mandamus with prayer for the issuance of a temporary
restraining order.32 One of the reliefs prayed for was:
chanRoblesv irt ual Lawlib rary
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents’ issuances, orders and actions
and the like in postponing the May 6, 2002 SK elections.33
This court held that:
chanRoblesvi rtua lLawl ibra ry
. . . petitioners instituted this petition to: (1) compel public respondents to
hold the SK elections on May 6, 2002 and should it be postponed, the SK
elections should be held not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions and orders that would
lower the membership age in the SK. . . .
....
Petitioners’ prayer to prevent Congress from enacting into law a proposed
bill lowering the membership age in the SK does not present an actual
justiciable controversy. A proposed bill is not subject to judicial review
because it is not a law. A proposed bill creates no right and imposes no duty
legally enforceable by the Court. A proposed bill, having no legal effect,
violates no constitutional right or duty. The Court has no power to declare a
proposed bill constitutional or unconstitutional because that would be in the
nature of rendering an advisory opinion on a proposed act of Congress. The
power of judicial review cannot be exercised in vacuo. . . .
....
Thus, there can be no justiciable controversy involving the constitutionality
of a proposed bill. The Court can exercise its power of judicial review only
after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to
its internal rules. Thus, the following acts of Congress in the exercise of its
legislative powers are not subject to judicial restraint: the filing of bills by
members of Congress, the approval of bills by each chamber of Congress,
the reconciliation by the Bicameral Committee of approved bills, and the
eventual approval into law of the reconciled bills by each chamber of
Congress. Absent a clear violation of specific constitutional limitations or of
constitutional rights of private parties, the Court cannot exercise its power of
judicial review over the internal processes or procedures of Congress.
....
. . . To do so would destroy the delicate system of checks and balances
finely crafted by the Constitution for the three co-equal, coordinate and
independent branches of government.34(Emphasis supplied, citations
omitted)
Similar to Montesclaros, petitioner is asking this court to stop Congress from
passing laws that will abolish the Judiciary Development Fund. This court has
explained that the filing of bills is within the legislative power of Congress
and is “not subject to judicial restraint[.]”35 A proposed bill produces no legal
effects until it is passed into law. Under the Constitution, the judiciary is
mandated to interpret laws. It cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass. It cannot
rule on mere speculations or issues that are not ripe for judicial
determination.36 The petition, therefore, does not present any actual case or
controversy that is ripe for this court’s determination.
Petitioner has no legal standing
Even assuming that there is an actual case or controversy that this court
must resolve, petitioner has no legal standing to question the validity of the
proposed bill. The rule on legal standing has been discussed in David v.
Macapagal-Arroyo:37
Locus standi is defined as “a right of appearance in a court of justice on a
given question.” In private suits, standing is governed by the “real-parties-in
interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that “every action must be prosecuted
or defended in the name of the real party in interest.” Accordingly, the “real-
party-in interest” is “the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit.” Succinctly
put, the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a “public right” in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a “stranger,” or in the category of a “citizen,” or ‘taxpayer.” In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a “citizen” or
“taxpayer.”
....
This Court adopted the “direct injury” test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must
have “a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result.” The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate,
Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary
of Public Works and Anti-Chinese League of the Philippines v. Felix.38
Petitioner has not shown that he has sustained or will sustain a direct injury
if the proposed bill is passed into law. While his concern for judicial
independence is laudable, it does not, by itself, clothe him with the requisite
standing to question the constitutionality of a proposed bill that may only
affect the judiciary.
This court, however, has occasionally relaxed the rules on standing when the
issues involved are of “transcendental importance” to the public. Specifically,
this court has stated that: chanRoblesvirt ual Lawlibra ry
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.39
Transcendental importance is not defined in our jurisprudence, thus,
in Francisco v. House of Representatives:40
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in raising the questions being
raised.41
A mere invocation of transcendental importance in the pleading is not
enough for this court to set aside procedural rules: chanRob lesvi rtua lLawl ibra ry
Whether an issue is of transcendental importance is a matter determined by
this court on a case-to-case basis. An allegation of transcendental
importance must be supported by the proper allegations.42
None of the determinants in Francisco are present in this case. The events
feared by petitioner are merely speculative and conjectural.
In addition to the determinants in Francisco, it must also be shown that
there is a clear or imminent threat to fundamental rights. In an opinion
in Imbong v. Ochoa:43
The Responsible Parenthood and Reproductive Health Act of 2012 should not
be declared unconstitutional in whole or in any of its parts given the
petitions filed in this case.
None of the petitions properly present an “actual case or controversy,” which
deserves the exercise of our awesome power of judicial review. It is our duty
not to rule on the abstract and speculative issues barren of actual facts.
These consolidated petitions, which contain bare allegations, do not provide
the proper venue to decide on fundamental issues. The law in question is
needed social legislation.
That we rule on these special civil actions for certiorari and prohibition —
which amounts to a pre-enforcement free-wheeling facial review of the
statute and the implementing rules and regulations — is very bad precedent.
The issues are far from justiciable. Petitioners claim in their class suits that
they entirely represent a whole religion, the Filipino nation and, worse, all
the unborn. The intervenors also claim the same representation: Filipinos
and Catholics. Many of the petitions also sue the President of the Republic.
We should apply our rules rigorously and dismiss these cases. The
transcendental importance of the issues they want us to decide will be better
served when we wait for the proper cases with the proper parties suffering
real, actual or more imminent injury. There is no showing of an injury so
great and so imminent that we cannot wait for these cases.44(Emphasis
supplied)
The events feared by petitioner are contingent on the passing of the
proposed bill in Congress. The threat of imminent injury is not yet manifest
since there is no guarantee that the bill will even be passed into law. There
is no transcendental interest in this case to justify the relaxation of technical
rules.
II
Requisites for the issuance of a writ of mandamus not shown
Rule 65, Section 3 of the 1997 Rules of Civil Procedure provides that: chanRoble svi rtual Lawli bra ry
Rule 65
CERTIORARI, PROHIBITION AND MANDAMUS
SEC. 3. Petition for mandamus.— When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. cralawred
The writ of mandamus will issue when the act sought to be performed is
ministerial.45 An act is ministerial when it does not require the exercise of
judgment and the act is performed in compliance with a legal mandate.46 In
a petition for mandamus, the burden of proof is on petitioner to show that
one is entitled to the performance of a legal right and that respondent has a
corresponding duty to perform the act.47Mandamus will not lie “to compel an
official to do anything which is not his duty to do or which it is his duty not
to do, or to give to the applicant anything to which he is not entitled by
law.”48
chanrob lesvi rtual lawlib rary
In this case, petitioner has not shown how he is entitled to the relief prayed
for. Hence, this court cannot be compelled to exercise its power of judicial
review since there is no actual case or controversy.
Final note
The judiciary is the weakest branch of government. It is true that courts
have power to declare what law is given a set of facts, but it does not have
an army to enforce its writs. Courts do not have the power of the purse.
“Except for a constitutional provision that requires that the budget of the
judiciary should not go below the appropriation for the previous year, it is
beholden to the Congress depending on how low the budget is.”49 chan roblesv irtuallaw lib rary
Despite being the third co-equal branch of the government, the judiciary
enjoys less than 1%50 of the total budget for the national government. It was only in 2013 that the budget allocated to the judiciary included an
Specifically, it was a mere 0.82% in 2014,51 0.85% in 2013,520.83% in item for the construction, rehabilitation, and repair of the halls of justice in
2012,53 and 0.83% in 2011.54 chan roble svirtuallaw lib rary the capital outlay. The amount allocated was P1 million.59 chan roblesv irt uallawl ibrary

Maintenance and Other Operating Expenses or MOOE “pays for sundry In 2014, there was no item for the construction, rehabilitation, and repair of
matters such as utility payments, paper, gasoline and others.”55 The MOOE the halls of justice.60 This allocation would have been used to help fund the
granted to the lower courts in 2014 was P1,220,905,000.00.56While this repair of existing halls of justice and the construction of new halls of justice
might seem like a large amount, the amount significantly dwindles when in the entire country, including those courts destroyed by Typhoon Yolanda
divided among all lower courts in the country. Per the 2014 General and the 2013 earthquake.
Appropriations Act (GAA), the approximate monthly MOOE for all courts are
estimated as follows: chanRoble svi rtual Lawli bra ry The entire budget for the judiciary, however, does not only come from the
Estimated Monthly national government. The Constitution grants fiscal autonomy to the
Type of Court Number of Courts57 judiciary to maintain its independence.61 In Bengzon v. Drilon:62
MOOE Per Court
The Judiciary, the Constitutional Commissions, and the Ombudsman must
Regional Trial have the independence and flexibility needed in the discharge of their
969 P46,408.67
Courts constitutional duties. The imposition of restrictions and constraints on the
Metropolitan Trial manner the independent constitutional offices allocate and utilize the funds
106 P46,071.89 appropriated for their operations is anathema to fiscal autonomy and
Courts
violative not only of the express mandate of the Constitution but especially
Municipal Trial as regards the Supreme Court, of the independence and separation of
229 P46,206.01
Courts in Cities powers upon which the entire fabric of our constitutional system is based.63
Municipal Circuit Courts, therefore, must also be accountable with their own budget. The
468 P46,305.69 Judiciary Development Fund, used to augment the expenses of the judiciary,
Trial Courts
is regularly accounted for by this court on a quarterly basis. The financial
Municipal Trial reports are readily available at the Supreme Court website.64
366 P46,423.30 chan roblesv irtuallawl ib rary

Courts
Shari’a District These funds, however, are still not enough to meet the expenses of lower
5 P40,696.83 courts and guarantee credible compensation for their personnel. The reality
Courts
is that halls of justice exist because we rely on the generosity of local
Shari’a Circuit government units that provide additional subsidy to our judges.65 If not, the
51 P45,883.68
Courts budget for the construction, repair, and rehabilitation of halls of justice is
These amounts were arrived at using the following computation: chanRoblesvi rtu alLaw lib rary
with the Department of Justice.66 chan roblesv irtuallawl ib rary

Number of Courts x MOOE

As a result, our fiscal autonomy and judicial independence are often
---------------------------
undermined by low levels of budgetary outlay, the lack of provision for
/1 maintenance and operating expenses, and the reliance on local government
Total Number of Courts
2 units and the Department of Justice.
--------------------------------------------------------------------
----------------- “Courts are not constitutionally built to do political lobbying. By
Number of Courts constitutional design, it is a co-equal department to the Congress and the
In comparison, the 2014 MOOE allocation for the House of Representatives Executive. By temperament, our arguments are legal, not political. We are
was P3,386,439,000.0058 or about P282.2 million per month for the best when we lay down all our premises in the finding of facts, interpretation
maintenance and operation of the House of Representatives compound in of the law and understanding of precedents. We are not trained to produce a
Batasan Hills. Even if this amount was divided equally among the 234 political statement or a media release.”67 chan roblesv irtuallawl ib rary

legislative districts, a representative’s office space would still have a monthly

MOOE allocation of approximately P1.2 million, which is significantly higher “Because of the nature of courts, that is – that it has to decide in favor of
than the average P46,000.00 allocated monthly to each trial court. one party, we may not have a political base. Certainly, we should not even
consider building a political base. All we have is an abiding faith that we
should do what we could to ensure that the Rule of Law prevails. It seems
that we have no champions when it comes to ensuring the material basis for
fiscal autonomy or judicial independence.”68 chan roblesv irtuallawl ib rary

For this reason, we appreciate petitioner’s concern for the judiciary. It is

often only through the vigilance of private citizens that issues relating to the
judiciary can be discussed in the political sphere. Unfortunately, the remedy
he seeks cannot be granted by this court. But his crusade is not a lost cause.
Considering that what he seeks to be struck down is a proposed bill, it would
be better for him to air his concerns by lobbying in Congress. There, he may
discover the representatives and senators who may have a similar
enthusiastic response to truly making the needed investments in the Rule of
Law.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-

BIOTECH APPLICATIONS, INC., Petitioner
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA
AT 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-in-Intervention

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

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKA AT 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-in-Intervention.
x-----------------------x
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,
INC., Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA
AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE
UNTALAN, ATTY. MARIA PAZLUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO
KIAT, JR., ATTY. H. HARRY L. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
x-----------------------x
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA
AT 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 L. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court are nine (9) Motions for Reconsideration1 assailing the
Decision2 dated December 8, 2015 of the Court (December 8, 2015
Decision), which upheld with modification the Decision3 dated May 17,
2013 and the Resolution4 dated September 20, 2013 of the Court of
Appeals (CA) in CA-G.R. SP No. 00013.
The Facts
The instant case arose from the conduct of field trials for
"bioengineered eggplants," known as Bacillus thuringiensis (Bt)
eggplant (Bt talong), administered pursuant to the Memorandum of
Undertaking5 (MOU) entered into by herein petitioners University of the
Philippines Los Baños Foundation, Inc. (UPLBFI) and International
Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA),
and the University of the Philippines Mindanao Foundation, Inc.
(UPMFI), among others. Bt talong contains the crystal toxin genes from
the soil bacterium Bt, which produces the CrylAc protein that is toxic to
target insect pests. The Cry1Ac protein is said to be highly specific
to lepidopteran larvae such as the fruit and shoot borer, the most
destructive insect pest to eggplants.6
From 2007 to 2009, petitioner University of the Philippines Los Banos
(UPLB), the implementing institution of the field trials, conducted a
contained experiment on Bt talong under the supervision of the
National Committee on Biosafety of the Philippines (NCBP).7 The
NCBP, created under Executive Order No. (EO) 430,8 is the regulatory
body tasked to: (a) "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 (b) ''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."9 Upon the completion of the
contained experiment, the NCBP issued a Certificate10 therefor stating
that all biosafety measures were complied with, and no untoward
incident had occurred.11
On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries
(BPI) issued two (2)-year Biosafety Permits12for field testing of Bt
talong13after UPLB's field test proposal satisfactorily completed
biosafety risk assessment for field testing pursuant to the Department
of Agriculture's (DA) Administrative Order No. 8, series of 200214 (DAO
08-2002),15 which provides for the rules and regulations for the
importation and release into the environment of plants and plant
products derived from the use of modern
biotechnology.16 Consequently, field testing proceeded in approved trial
sites in North Cotabato, Pangasinan, Camarines Sur, Davao City, and
Laguna.17
On April 26, 2012, respondents Greenpeace Southeast Asia
(Philippines) (Greenpeace), Magsasaka at Siyentipiko sa
Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents)
filed before the Court a Petition for Writ of Continuing Mandamus and
Writ of Kalikasan with Prayer for the Issuance of a Temporary
Environmental Protection Order (TEPO)18 (petition for Writ
of Kalikasan) against herein petitioners the Environmental
Management Bureau (EMB) of the Department of Environment and
Natural Resources (DENR), the BPI and the Fertilizer and Pesticide
Authority (FPA) of the DA, UPLBFI, and ISAAA, and UPMFI, alleging
that the Bt talong field trials violated their constitutional right to health
and a balanced ecology considering, among others, that: (a) the
Environmental Compliance Certificate (ECC), as required by
Presidential Decree No. (PD) 1151,19 was not secured prior to the field
trials;20 (b) the required public consultations under the Local
Government Code (LGC) were not complied with;21 and (c) as a
regulated article under DAO 08-2002, Bt talong is presumed harmful to
human health and the environment, and that there is no independent,
peer-reviewed study showing its safety for human consumption and the
environment.22 Further, they contended that since the scientific
evidence as to the safety of Bt talong remained insufficient or
uncertain, and that preliminary scientific evaluation shows reasonable
grounds for concern, the precautionary principle should be applied and,
thereby, the field trials be enjoined.23
On May 2, 2012, the Court issued24 a Writ of Kalikasan against
petitioners (except UPLB25) and UPMFI, ordering them to make a
verified return within a non-extendible period of ten (10) days, as
provided for in Section 8, Rule 7 of the Rules of Procedure for
Environmental Cases.26 Thus, in compliance therewith, ISAAA,
EMB/BPI/FPA, UPLBFI, and UPMFI27 filed their respective verified
returns,28 and therein maintained that: (a) all environmental laws were
complied with, including the required public consultations in the
affected communities; (b) an ECC was not required for the field trials
as it will not significantly affect the environment nor pose a hazard to
human health; (c) there is a plethora of scientific works and literature,
peer-reviewed, on the safety of Bt talong for human
consumption; (d) at any rate, the safety of Bt talong for human
consumption is irrelevant because none of the eggplants will be
consumed by humans or animals and all materials not used for
analyses will be chopped, boiled, and buried following the conditions of
the Biosafety Permits; and (e) the precautionary principle could not be
applied as the field testing was only a part of a continuing study to
ensure that such trials have no significant and negative impact on the
environment.29
On July 10, 2012, the Court issued a Resolution30 referring the case to
the Court of Appeals for acceptance of the return of the writ and for
hearing, reception of evidence, and rendition of judgment.31 In a
hearing before the CA on August 14, 2012, UPLB was impleaded as a
party to the case and was furnished by respondents a copy of their
petition. Consequently the CA directed UPLB to file its comment to the
petition32 and, on August 24, 2012, UPLB filed its Answer33 adopting the
arguments and allegations in the verified return filed by UPLBFI. On
the other hand, in a Resolution34 dated February 13, 2013, the CA
discharged UPMFI as a party to the case pursuant to the Manifestation
and Motion filed by respondents in order to expedite the proceedings
and resolution of the latter's petition.
The CA Ruling
In a Decision35 dated May 17, 2013, the CA ruled in favor of
respondents and directed petitioners to pem1anently cease and desist
from conducting the Bt talong field trials.36 At the outset, it did not find
merit in petitioners' contention that the case should be dismissed on
the ground of mootness, noting that the issues raised by the latter were
"capable of repetition yet evading review" since the Bt talong field trial
was just one of the phases or stages of an overall and bigger study
that is being conducted in relation to the said genetically-modified
organism.37 It then held that the precautionary principle set forth under
Section 1,38 Rule 20 of the Rules of Procedure for Environmental
Cases39 is relevant, considering the Philippines' rich biodiversity and
uncertainty surrounding the safety of Bt talong. It noted the possible
irreversible effects of the field trials and the introduction of Bt talong to
the market, and found the existing regulations issued by the DA and
the Department of Science and Technology (DOST) insufficient to
guarantee the safety of the environment and the health of the people.40
Aggrieved, petitioners separately moved for
reconsideration.41 However, in a Resolution42 dated September 20,
2013, the CA denied the same and remarked that introducing
genetically modified plant into the ecosystem is an ecologically
imbalancing act.43 Anent UPLB 's argument that the Writ
of Kalikasan violated its right to academic freedom, the CA
emphasized that the writ did not stop the research on Bt talong but only
the procedure employed in conducting the field trials, and only at this
time when there is yet no law ensuring its safety when introduced to
the environment.44
Dissatisfied, petitioners filed their respective petitions for review
on certiorari before this Court.
The Proceedings Before the Court
In a Decision45 dated December 8, 2015, the Court denied the petitions
and accordingly, affinned with modification the ruling of the
CA.46 Agreeing with the CA, the Court held that the precautionar;
principle applies in this case since the risk of harm from the field trials
of Bt talong remains uncertain and there exists a possibility of serious
and irreversible harm. The Court observed that eggplants are a staple
vegetable in the country that is mostly grown by small-scale farmers
who are poor and marginalized; thus, given the country's rich
biodiversity, the consequences of contamination and genetic pollution
would be disastrous and irreversible.47
The Court likewise agreed with the CA in not dismissing the case for
being moot and academic despite the completion and termination of
the Bt talong field trials, on account of the following exceptions to the
mootness principle: (a) the exceptional character of the situation and
the paramount public interest is involved; and (b) the case is capable of
repetition yet evading review.48
Further, the Court noted that while the provisions of DAO 08-2002
were observed, the National Biosafety Framework (NBF) established
under EO 514, series of 200649 which requires public participation in all
stages of biosafety decision-making, pursuant to the Cartagena
Protocol on Biosafety50 which was acceded to by the Philippines in
2000 and became effective locally in 2003, was not complied
with.51 Moreover, the field testing should have been subjected to
Environmental Impact Assessment (EIA), considering that it involved
new technologies with uncertain results.52
Thus, the Court permanently enjoined the field testing of Bt talong. In
addition, it declared DAO 08-2002 null and void for failure to consider
the provisions of the NBF. The Court also temporarily enjoined any
application for contained use, field testing, propagation,
commercialization, and importation of genetically modified organisms
until a new administrative order is promulgated in accordance with
law.53
The Issues Presented in the Motions for Reconsideration
Undaunted, petitioners moved for reconsideration,54 arguing, among
others, that: (a) the case should have been dismissed for mootness in
view of the completion and termination of the Bt talong field trials and
the expiration of the Biosafety Permits;55 (b) the Court should not have
ruled on the validity of DAO 08-2002 as it was not raised as an
issue;56 and (c) the Court erred in relying on the studies cited in the
December 8, 2015 Decision which were not offered in evidence and
involved Bt corn, not Bt talong.57
In their Consolidated Comments,58 respondents maintain, in essence,
that: (a) the case is not mooted by the completion of the field trials
since field testing is part of the process of commercialization and will
eventually lead to propagation, commercialization, and consumption
of Bt talong as a consumer product;59 (b) the validity of DAO 08-2002
was raised by respondents when they argued in their petition for Writ
of Kalikasan that such administrative issuance is not enough to
adequately protect the Constitutional right of the people to a balanced
and healthful ecology;60 and (c) the Court correctly took judicial notice
of the scientific studies showing the negative effects of Bt technology
and applied the precautionary principle.61
The Court's Ruling
The Court grants the motions for reconsideration on the ground of
mootness.
As a rule, the Court may only adjudicate actual, ongoing
controversies.62 The requirement of the existence of a "case" or an
"actual controversy" for the proper exercise of the power of judicial
review proceeds from Section 1, Article VIII of the 1987 Constitution:
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 comis of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. (Emphasis
supplied)
Accordingly, the Court is not empowered to decide moot questions or
abstract propositions, or to declare principles or rules of law which
cannot affect the result as to the thing in issue in the case before it. In
other words, when a case is moot, it becomes non-justiciable.63
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. There is nothing for the
court to resolve as the determination thereof has been overtaken by
subsequent events.64
Nevertheless, case law states that the Court will decide cases,
otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the
paramount public interest are 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.65 Thus, jurisprudence recognizes these
four instances as exceptions to the mootness principle.
In the December 8, 2015 Decision of the Court, it was held that (a) the
present case is of exceptional character and paramount public interest
is involved, and (b) it is likewise capable of repetition yet evading
review. Hence, it was excepted from the mootness
principle.66 However, upon a closer scrutiny of the parties' arguments,
the Court reconsiders its ruling and now finds merit in petitioners'
assertion that the case should have been dismissed for being moot
and academic, and that the aforesaid exceptions to the said rule
should not have been applied.
I. On the paramount public interest exception.
Jurisprudence in this jurisdiction has set no hard-and-fast rule in
determining whether a case involves paramount public interest in
relation to the mootness principle. However, a survey of cases would
show that, as a common guidepost for application, there should be
some perceivable benefit to the public which demands the Court to
proceed with the resolution of otherwise moot questions.
In Gonzales v. Commission on Elections,67an action for declaratory
judgment assailing the validity of Republic Act No. (RA) 4880,68 which
prohibits the early nomination of candidates for elective offices and
early election campaigns or partisan political activities became moot by
reason of the holding of the 1967 elections before the case could be
decided. Nonetheless, the Court treated the petition as one for
prohibition and rendered judgment in view of "the paramount public
interest and the undeniable necessity for a ruling, the national elections
[of 1969] being barely six months away."69
In De Castro v. Commission on Elections,70 the Court proceeded to
resolve the election protest subject of that case notwithstanding the
supervening death of one of the contestants. According to the Court, in
an election contest, there is a paramount need to dispel the uncertainty
that beclouds the real choice of the electorate.71
In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality
of Presidential Proclamation No. 1017, s. 2006,73 which declared a
state of National Emergency, even though the same was lifted before a
decision could be rendered. The Court explained that the case was
one of exceptional character and involved paramount public interest,
because the people's basic rights to expression, assembly, and of the
press were at issue.74
In Constantino v. S'andiganbayan,75 both of the accused were found
guilty of graft and corrupt practices under Section 3 (e) of RA
3019.76 One of the accused appealed the conviction, while the other
filed a petition for certiorari before the Court. While the appellant died
during the pendency of his appeal, the Court still ruled on the merits
thereof considering the exceptional character of the appeals in relation
to each other, i.e., the two petitions were so intertwined that the
absolution of the deceased was determinative of the absolution of the
other accused.77
More recently, in Funa v. Manila Economic and Cultural Office
(MECO),78the petitioner prayed that the Commission on Audit (COA) be
ordered to audit the MECO which is based in Taiwan, on the premise
that it is a government-owned and controlled corporation.79 The COA
argued that the case is already moot and should be dismissed, since it
had already directed a team of auditors to proceed to Taiwan to audit
the accounts of MECO.80 Ruling on the merits, the Court explained that
the case was of paramount public interest because it involved the
COA's performance of its constitutional duty and because the case
concerns the legal status of MECO, i.e., whether it may be considered
as a government agency or not, which has a direct bearing on the
country's commitment to the One China Policy of the People's Republic
of China.81
In contrast to the foregoing cases, no perceivable benefit to the public -
whether rational or practical - may be gained by resolving respondents'
petition for Writ of Kalikasan on the merits.
To recount, these cases, which stemmed from herein respondents
petition for Writ of Kalikasan, were mooted by the undisputed
expiration of the Biosafety Permits issued by the BPI and the
completion and termination of the Bt talong field trials subject of the
same.82 These incidents effectively negated the necessity for the reliefs
sought by respondents in their petition for Writ of Kalikasan as there
was no longer any field test to enjoin. Hence, at the time the CA
rendered its Decision dated May 17, 2013, the reliefs petitioner sought
and granted by the CA were no longer capable of execution.
At this juncture, it is important to understand that the completion and
termination of the field tests do not mean that herein petitioners may
inevitably proceed to commercially propagate Bt talong.83 There are
three (3) stages before genetically-modified organisms (GMOs) may
become commercially available under DAO 08-200284 and each stage
is distinct, such that "[s]ubsequent stages can only proceed if the prior
stage/s [is/]are completed and clearance is given to engage in the next
regulatory stage."85 Specifically, before a genetically modified organism
is allowed to be propagated under DAO 08-2002: (a) a permit for
propagation must be secured from the BPI; (b) it can be shown that
based on the field testing conducted in the Philippines, the regulated
article will not pose any significant risks to the environment; (c) food
and/or feed safety studies show that the regulated article will not pose
any significant risks to human and animal health; and (d) if the
regulated article is a pest-protected plant, its transformation event has
been duly registered with the FPA.86
As the matter never went beyond the field testing phase, none of the
foregoing tasks related to propagation were pursued or the
requirements therefor complied with. Thus, there are no guaranteed
after-effects to the already concluded Bt talong field trials that demand
an adjudication from which the public may perceivably benefit. Any
future threat to the right ,of herein respondents or the public in general
to a healthful and balanced ecology is therefore more imagined than
real.
In fact, it would appear to be more beneficial to the public to stay a
verdict on the safeness of Bt talong - or GMOs, for that matter - until an
actual and justiciable case properly presents itself before the Court. In
his Concurring Opinion87 on the main, Associate Justice Marvic M.V.F.
Leonen (Justice Leonen) had aptly pointed out that "the findings
[resulting from the Bt talong field trials] should be the material to
provide more rigorous scientific analysis of the various claims made in
relation to Bt talong."88 True enough, the concluded field tests ·- like
those in these cases – would yield data that may prove useful for future
studies and analyses. If at all, resolving the petition for Writ
of Kalikasan would unnecessarily arrest the results of further research
and testing on Et talong, and even GMOs in general, and hence, tend
to hinder scientific advancement on the subject matter.
More significantly, it is clear that no benefit would be derived by the
public in assessing the merits of field trials whose parameters are not
only unique to the specific type of Bt talong tested, but are now, in fact,
rendered obsolete by the supervening change in the regulatory
framework applied to GMO field testing. To be sure, DAO 08-2002 has
already been superseded by Joint Department Circular No. 1, series of
201689 (JDC 01-2016), issued by the Department of Science and
Technology (DOST), the DA, the DENR, the Department of Health
(DOH), and the Department of Interior and Local Government (DILG),
which provides a substantially different regulatory framework from that
under DAO 08-2002 as will be detailed below. Thus, to resolve
respondents' petition for Writ of Kalikasan on its merits, would be
tantamount to an unnecessary scholarly exercise for the Court to
assess alleged violations of health and environmental rights that arose
from a past test case whose bearings do not find any - if not minimal --
relevance to cases operating under today's regulatory framework.
Therefore, the paramount public interest exception to the mootness
rule should not have been applied. 1âwphi 1
II. The case is not one capable of repetition vet evading review.
Likewise, contrary to the Court's earlier ruling,90 these cases do not fall
under the "capable of repetition yet evading review" exception.
The Court notes that the petition for Writ of Kalikasan specifically
raised issues only against the field testing of Bt talong under the
premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a)
fully inform the eople regarding the health, environment, and other
hazards involved;92 and (b) conduct any valid risk assessment before
conducting the field trial.93 As further pointed out by Justice Leonen, the
reliefs sought did not extend far enough to enjoin the use of the results
of the field trials that have been completed. Hence, the petition's
specificity prevented it from falling under the above exception to the
mootness rule.94
More obviously, the supersession of DAO 08-2002 by JDC 01-2016
clearly prevents this case from being one capable of repetition so as to
warrant review despite its mootness. To contextualize, JDC 01-2016
states that:
Section 1. Applicability. This Joint Department Circular shall apply to
the research, development, handling and use, transboundary
movement, release into the environment, and management of
genetically-modified plant and plant products derived from the use of
modern technology, included under "regulated articles."
As earlier adverted to, with the issuance of JDC 01-2016, a new
regulatory framework in the conduct of field testing now applies.
Notably, the new framework under JDC 01-2016 is substantially
different from that under DAO 08-2002. In fact, the new parameters in
JDC 01-2016 pertain to provisions which prompted the Court to
invalidate D'AO 08-2002. In the December 8, 2015 Decision of the
Court, it was observed that: (a) DAO 08-2002 has no mechanism to
mandate compliance with inten1ational biosafety protocols;95 (b) DAO
08-2002 does not comply with the transparency and public participation
requirements under the NBF;96 and (c) risk assessment is conducted by
an informal group, called the Biosafety Advisory Team of the DA,
composed of representatives from the BPI, Bureau of Animal Industry,
FPA, DENR, DOH, and DOST.97
Under DAO 08-2002, no specific guidelines were used in the conduct
of risk assessment, and the DA was allowed to consider the expert
advice of, and guidelines developed by, relevant inteniational
organizations and regulatory authorities of countries with significant Below is a tabular presentation of the differences between the relevant
experience in the regulatory supervision of the regulated portions of DAO 08-2002 and JDC 01-2016:
article.98 However, under JDC 01-2016, the
CODEX Alimentarius Guidelines was adopted to govern the risk
assessment of activities involving the research, development, handling DAO 08-2002 JDC 01-2016
and use, transboundary movement, release into the environment, and
management of genetically modified plant and plant products derived 1. As to coverage and government participation
from the use of modem biotechnology.99Also, whereas DAO 08-2002
was limited to the DA's authority in regulating the importation and WHEREAS, under Title IV, ARTICLE I. GENERAL
release into the environment of plants and plant products derived from Chapter 4, Section 19 of the PROVISIONS
the use of modern biotechnology,100 under JDC 01-2016, various Administrative Code of 1987, the
relevant government agencies such as the DOST, DOH, DENR, and Department of Agriculture, Section 1. Applicability. This Joint
the DILG now participate in all stages of the biosafety decision-making through the Bureau of Plant Department Circular shall apply to
process, with the DOST being the central and lead agency.101 Industry, is responsible for the the research, development,
production of improved planting handling and use, transboundary
materials and protection of movement, release into the
JDC 01-2016 also provides for a more comprehensive avenue for
agricultural crops from pests and environment, and management of
public participation in cases involving field trials and requires
diseases; and genetically-modified plant and plant
applications for permits and permits already issued to be made public
by posting them online in the websites of the NCBP and the BPI.102 The products derived from the use of
composition of the Institutional Biosafety Committee (IBC) has also xxxx modern biotechnology, included
been modified to include an elected local official in the locality where under "regulated articles."
the field testing will be conducted as one of the community PART I
representatives.103 Previously, under DAO 08-2002, the only GENERAL PROVISIONS xxxx
requirement for the community representatives is that they shall not be
affiliated with the applicant and shall be in a position to represent the xxxx ARTICLE III. ADMINISTRATIVE
interests of the communities where the field testing is to be
conducted.104 PART I FRAMEWORK
GENERAL PROVISIONS
JDC 01-2016 also prescribes additional qualifications for the members Section 4. Role of National
of the Scientific and Technical Review Panel (STRP), the pool of xxxx Government Agencies Consistent
scientists that evaluates the risk assessment submitted by the with the NBF and the laws granting
applicant for field trial, commercial propagation, or direct use of Section 2 their powers and functions, national
regulated articles. Aside from not being an official, staff or employee of Coverage government agencies shall have the
the DA or any of its attached agencies, JDC 01-2016 requires that following roles:
members of the STRP: (a) must not be directly or indirectly employed A. Scope - This Order covers
or engaged by a company or institution with pending applications for the importation or release into A. [DA]. As the principal agency of
pennits under JDC 01-2016; (b) must possess technical expertise in the environment of: 1. Any plant the Philippine Government
food and nutrition, toxicology, ecology, crop protection, environmental which has been altered or responsible for the promotion of
science, molecular biology and biotechnology, genetics, plant produced through the use of agricultural and rural growth and
breeding, or animal nutrition; and (c) must be well-respected in the modem biotechnology if the development so as to ensure food
scientific community.105
donor organism, host organism,
or vector or vector agent
belongs to any of the genera or
taxa classified by 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 or produced through the
use of modern biotechnology
which may pose significant risks
to human health and the
environment based on available
scientific and technical
information.
B. Exceptions. - This Order shall
not apply to the contained use of
a regulated article, which is
within the regulatory supervision
of NCBP.
security and to contribute to poverty
alleviation, the DA shall take the
lead in addressing biosafety issues
related to the country's agricultural
productivity and food security.x x x.
B. [DOST]. As the premier science
and technology body in the country,
the DOST shall take the lead in
ensuring that the best available
science is utilized and applied in
adopting biosafety policies,
measures and guidelines, and in
making biosafety decision.
x xx.
C. [DENR]. As the primary
government agency responsible for
the conservation management,
development and proper use of the
country's environment and natural
resources, the DENR shall ensure
that environmental assessments are
done and impacts identified in
biosafety decisions. x x x.
D. [DOH]. The DOH, as the
principal authority on health, shall
formulate guidelines in assessing
the health impacts posed by
modern biotechnology and its
applications. x x x.
E. [DILG]. The DILG shall
coordinate with the DA, DOST,
DENR and DOH in overseeing the
implementation of this Circular in
2. As to guidelines in risk assessment
PART I
GENERAL PROVISIONS
xxxx
Section 3
Risk Assessment
A. Principles of Risk
Assessment - No regulated
article shall be allowed to be
imported or released into the
environment without the conduct
of a risk assessment performed
in accordance with this Order.
The following principles shall be
followed when performing a risk
assessment to determine
whether a regulated article
poses significant risks to human
health and the environment:
1. The risk assessment 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
relation to the activities that are to
be implemented in specific LGUs,
particulady in relation to the conduct
of public consultations as required
under the Local Government Code.
x x x.
ARTICLE II. BIOSAFETY
DECISIONS
Section 3. Guidelines in Making
Biosafety Decisions
The principles under the NBF shall
guide concerned agencies in
making biosafety decisions,
including:
xxxx
B. Risk Assessment. Risk
assessment shall be mandatory and
central in making biosafety
decisions, consistent with policies
and standards on risk assessment
issued by the NCBP; and guided by
Annex III of the Cartagena Protocol
on Biosafety. Pursuant to the NBF,
the following principles shall be
followed when performing a risk
assessment to determine whether a
regulated article poses significant
risks to human health and the
environment.
1. The risk assessment shall be
carried out in a scientifically sound
and transparent manner based on
international organizations 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.
x x xx
3. As to public participation
PART III
APPROVAL PROCESS FOR
FIELD TESTING OF
REGULATE ARTICLES
xxxx
Section 8
Requirements for Field
Testing
xxxx
G. Public Consultation. - The
applicant, acting through its IBC,
shall notity and invite comments
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, CODEX Alimentarius
Guidelines on the Food Safety
Assessment of Foods Derived from
the Recombinant-DNA Plants shall
internationally adopted as well as
other internationally accepted
consensus documents.
x x x x (Underscoring supplied)
ARTICLE V. FIELD TRIAL OF
REGULATED ARTICLES
Section 12. Public Participation
for Field Trial
A. The BPI shall make public all
applications and Biosafety Permits
for Field Trial through posting on the
NCBP and BPI websites, and in the
offices of the DA and DOST in the
province, city, or municipality where
the field trial will be conducted.
x x xx
on the field testing proposal from
the barangays and
city/municipal governments with
jurisdiction over the field test
sites. The IBC shall post for
three (3) consecutive weeks
copies of the Public Information
Sheet for Field Testing approved
by the BPI in at least three (3)
conspicuous places in each of
the concerned barangay and
city/municipal halls. The Public
Information Sheet for Field
Testing shall, among others,
invite interested parties to send
their comments on the proposed
field testing to BPI within a
period of thirty (30) days from
the date of posting. It shall be m
a language understood in the
community. During the comment
period, any interested person
may submit to BPI written
comments regarding the
application. The applicant shall
submit proof of posting in the
form of certifications from the
concerned barangay captains
and city/municipal mayors or an
affidavit stating the dates and
places of posting duly executed
by the responsible officer or his
duly authorized representative.
4. As to membership in the Institutional Biosafety Committee
PART I ARTICLE III. ADMINISTRATIVE
GENERAL PROVISIONS
FRAMEWORK
Section 1
Definition of Terms
xxxx
L. "IBC" means the Institutional
Biosafety Committee
established by an applicant in
preparation for the field testing
of a regulated article and whose
membership has been approved
by BPI. The JBC shall be
responsible for the initial
evaluation of the risk
assessment and risk
management strategies of the
applicant for field testing. It 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. The other members, who
shall be designated as
"community representatives",
shall not be affiliated with the
applicant apart from being
members of its IBC and shall be
in a position to represent the
interests of the communities
where the field testing is to be
conducted. For the avoidance of
doubt, NCBP shall be
xxxx
Section 6. Institutional Biosafety
Committee
The company or institution applying
for and granted permits under this
Circular shall constitute an IBC prior
to the contained use, confined test,
or field trial of a regulated article.
The membership of the IBC shall be
approved by the DOST-BC for
contained use or confined test, or
by the DA-BC for field trial. The IBC
is responsible for the conduct of the
risk assessment and preparation of
risk management strategies of the
applicant for contained use,
confined test, or field trial. It shall
make sure that the environment and
human health are safeguarded in
the conduct of any activity involving
regulated articles.
The IBC shall be composed of at
least five (5) members, three (3) of
whom shall be designated, as
scientist-members and two (2)
members shall be community
representatives. All scientist-
members must possess scientific or
technological knowledge and
expertise sufficient to enable them
to property evaluate and monitor
any work involving regulated articles
conducted by the applicant.
The community regresentative must
not be affiliated with the applicant,
responsible for approving the
membership of the IBC for
contained use of a regulated
article.
x x x x (Underscoring supplied)
5. As to the composition and qualifications of the members of the
Scientific and Technical Review
Panel
PART I
GENERAL PROVISIONS
Section 1
Definition of Terms
xxxx
EE. "STRP" means the Scientific
and Technical Review Panel
created by BPI as an advisory
body, composed of at least three
(3) reputable and independent
scientists who shall not be
employees of the Department
and must be in a position to
regresent the interests of the
communities where the activities
are to be conducted. One of the
community regresentatives shall be
an elected official of the LGU. The
other community representative
shall be selected from the residents
who are members of the Civil
Society Organizations represented
in the Local Poverty Reduction
Action Team, pursuant to DILG
Memorandum Circular No. 2015-
45. For multi-location trials,
community representatives of the
IBC shall be designated per site. x x
x. (Underscoring supplied)
ARTICLE III. ADMINISTRATIVE
FRAMEWORK
xxxx
Section 7. Scientific and
Technical Review Panel
(STRP) The DA shall create a
Scientific and Technical Review
Panel composed of a pool of non-
DA scientists with expertise in the
evaluation of the potential risks of
regulated articles to the
environment and health. x x x

and who have the relevant
professional background
necessary to evaluate the
potential risks of the proposed
activity to human health and the
environment based on available
scientific and technical
information.
x x x x (Underscoring supplied)
Based on the foregoing, it is apparent that the regulatory framework
now applicable in conducting risk assessment in matters involving the
research, development, handling, movement, and release into the
xxxx
The DA shall select
scientists/experts in the STRP, who
shall meet the following
qualifications:
A. Must not be an official, staff or
employee of the DA or any of its
attached agencies;
B. Must not be directly or indirectly
employed or engaged by a
company or institution with pending
applications for permits covered by
this Circular;
C. Possess technical expertise in at
least one of the following fields:
food and nutrition; toxicology,
ecology, crop protection,
environmental science, molecular
biology and biotechnology,
genetics, plant breeding, animal
nutrition; and
D. Well-respected in the scientific
community as evidenced by
positions held in science-based
organizations, awards and
recognitions, publications in local
and international peer-reviewed
scientific journals.
x x x x (Underscoring supplied)
environment of genetically modified plant and plant products derived
from the use of modem biotechnology is substantially different from
that which was applied to the subject field trials. In this regard, it cannot
be said that the present case is one capable of repetition yet evading
review.
The essence of cases capable of repetition yet evading review was
succinctly explained by the Court in Belgica v. Ochoa, Jr.,106 where the
constitutionality of the Executive Department's lump-sum, discretionary
funds under the 2013 General Appropriations Act, known as the
Priority Development Assistance Fund (PDAF), was assailed. In that
case, the Court rejected the view that the issues related thereto had
been rendered moot and academic by the reforms undertaken by the
Executive Department and former President Benigno Simeon S.
Aquino III's declaration that he had already "abolished the PDAF."
Citing the historical evolution of the ubiquitous Pork Barrel System,
which was the source of the PDAF, and the fact that it has always been
incorporated in the national budget which is enacted annually, the
Court ruled that it is one capable of repetition yet evading review, thus:
Finally, the application of the fourth exception [to the rule on mootness]
is called for by the recognition that the preparation and passage of
the national budget is, by constitutional imprimatur, an affair of
annual occurrence. The relevance of the issues before the Court
does not cease with the passage of a "PDAF-free budget for
2014." The evolution of the "Pork Barrel System," by its
multifarious iterations throughout the course of history, lends a
semblance of truth to petitioners' claim that "the same dog will
just resurface wearing a different collar." In Sanlakas v. Executive
Secretary, the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but
evading review" exception in order "[t]o prevent similar questions from
re-emerging." The situation similarly holds true to these cases. Indeed,
the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are
capable of repetition and hence; must not evade judicial
review.107 (Emphases supplied)
Evidently, the "frequent" and "routinary" nature of the Pork Barrel
Funds and the PDAF are wanting herein. To reiterate, the issues in
these cases involve factual considerations which are peculiar only to
the controversy at hand since the petition for Writ of Kalikasan is
specific to the field testing of Bt talong and does not involve other
GMOs.
At this point, the Court discerns that there are two (2) factors to be
considered before a case is deemed one capable of repetition yet
evading review: (1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration; and (2) there was
a reasonable expectation that the same complaining party would be
subjected to the same action.
Here, respondents cannot claim that the duration of the subject field
tests was too short to be fully litigated. It must be emphasized that the
Biosafety Permits for the subject field tests were issued on March 16,
2010 and June 28, 2010, and were valid for two (2) years. However, as
aptly pointed out by Justice Leonen, respondents filed their petition for
Writ of Kalikasan only on April 26, 2012 - just a few months before the
Biosafety Permits expired and when the field testing activities were
already over.108 Obviously, therefore, the cessation of the subject field
tests before the case could be resolved was due to respondents' own
inaction.
Moreover, the situation respondents complain of is not susceptible' to
repetition. As discussed above, DAO 08-2002 has already been
superseded by JDC 01-2016. Hence, future applications for field
testing will be governed by JDC 01-2016 which, as illustrated, adopts a
regulatory framework that is substantially different from that of DAO 08-
2002.
Therefore, it was improper for the Court to resolve the merits of the
case which had become moot in view of the absence of any valid
exceptions to the rule on mootness, and to thereupon rule on the
objections against the validity and consequently nullify DAO 08-2002
under the premises of the precautionary principle.
In fact, in relation to the latter, it is observed that the Court should not
have even delved into the constitutionality of DAO 08-2002 as it was
merely collaterally challenged by respondents, based on the
constitutional precepts of the people's rights to infonnation on matters
of public concern, to public participation, to a balanced and healthful
ecology, and to health.109 A cursory perusal of the petition for Writ
of Kalikasan filed by respondents on April 26, 2012 before the Court
shows that they essentially assail herein petitioners' failure to: (a) fully
infom1 the people regarding the health, environment, and other
hazards involved;110 and (b) conduct any valid risk assessment before
conducting the field trial.111 However, while the provisions of DAO 08-
2002 were averred to be inadequate to protect (a) the constitutional
right of the people to a balanced and healthful ecology since "said
regulation failed, among others, to anticipate 'the public implications
caused by the importation of GMOs in the Philippines"';112and (b) "the
people from the potential harm these genetically modified plants and
genetically modified organisms may cause human health and the
environment, [and] thus, x x x fall short of Constitutional
compliance,"113 respondents merely prayed for its amendment, as well
as that of the NBF, to define or incorporate "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[.]"114 This attempt to assail the constitutionality of the
public info1mation and consultation requirements under DAO 08-2002
and the NBF constitutes a collateral attack on the said provisions of
law that runs afoul of the wdlsettled rule that the constitutionality of a
statute cannot be collaterally attacked as constitutionality issues must
be pleaded directly and not collaterally.115 Verily, the policy of the courts
is to avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid, absent a clear and
unmistakable showing to the contrary, in deference to the doctrine of
separation of powers. This means that the measure had first been
carefuliy studied by the executive department and found to be in
accord with the Constitution before it was finally enacted and
approved.116
All told, with respondents' petition for Writ of Kalikasan already mooted
by the expiration of the Biosafoty Permits and the completion of the
field trials subject of these cases, and with none of the exceptions to
the mootness principle properly attending, the Court grants the instant
motions for reconsideration and hereby dismisses the aforesaid
petition. With this pronouncement, no discussion on the substantive
merits of the same should be made.
WHEREFORE, the motions for reconsideration are GRANTED. The
Decision dated December 8, 2015 of the Court, which affirmed with
modification the Decision dated May 17, 2013 and the Resolution
dated September 20, 2013 of the Court of Appeals in CA-G.R. SP No.
00013, is hereby SET ASIDE for the reasons above-explained. A new
one is ENTERED DISMISSING the Petition for Writ of
Continuing Mandamus and Writ of Kalikasan with Prayer for the
Issuance of a Temporary Environmental Protection Order (TEPO) filed
by respondents Greenpeace Southeast Asia (Philippines), Magsasaka
at Siyentipiko sa Pagpapaunlad ng Agrikultura, and others on the
ground of mootness.

SO ORDERED.

G.R. No. 164171 February 20, 2006

HON. EXECUTIVE SECRETARY, HON. SECRETARY OF THE

DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS
(DOTC), COMMISSIONER OF CUSTOMS, ASSISTANT
SECRETARY, LAND TRANSPORTATION OFFICE (LTO),
COLLECTOR OF CUSTOMS, SUBIC BAY FREE PORT ZONE, AND
CHIEF OF LTO, SUBIC BAY FREE PORT ZONE, Petitioners,
vs.
SOUTHWING HEAVY INDUSTRIES, INC., represented by its
President JOSE T. DIZON, UNITED AUCTIONEERS, INC.,
represented by its President DOMINIC SYTIN, and MICROVAN,
INC., represented by its President MARIANO C.
SONON, Respondents.

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

G.R. No. 164172 February 20, 2006

HON. EXECUTIVE SECRETARY, SECRETARY OF THE

DEPARTMENT OF TRANSPORTATION AND COMMUNICATION
(DOTC), COMMISSIONER OF CUSTOMS, ASSISTANT
SECRETARY, LAND TRANSPORTATION OFFICE (LTO),
COLLECTOR OF CUSTOMS, SUBIC BAY FREE PORT ZONE AND
CHIEF OF LTO, SUBIC BAY FREE PORT ZONE, Petitioners,
vs. 3.1 The importation into the country, inclusive of the
SUBIC INTEGRATED MACRO VENTURES CORP., represented by Freeport, of all types of used motor vehicles is prohibited,
its President YOLANDA AMBAR,Respondent. except for the following:

x---------------x 3.1.1 A vehicle that is owned and for the personal use
of a returning resident or immigrant and covered by an
G.R. No. 168741 February 20, 2006 authority to import issued under the No-dollar
Importation Program. Such vehicles cannot be resold
HON. EXECUTIVE SECRETARY, HON. SECRETARY OF FINANCE, for at least three (3) years;
THE CHIEF OF THE LAND TRANSPORTATION OFFICE, THE
COMMISSIONER OF CUSTOMS, and THE COLLECTOR OF 3.1.2 A vehicle for the use of an official of the
CUSTOMS, SUBIC SPECIAL ECONOMIC ZONE, Petitioners, Diplomatic Corps and authorized to be imported by the
vs. Department of Foreign Affairs;
MOTOR VEHICLE IMPORTERS ASSOCIATION OF SUBIC BAY
FREEPORT, INC., represented by its President ALFREDO S. 3.1.3 Trucks excluding pickup trucks;
GALANG, Respondent.
1. with GVW of 2.5-6.0 tons covered by an
DECISION authority to import issued by the DTI.

YNARES-SANTIAGO, J.: 2. With GVW above 6.0 tons.

The instant consolidated petitions seek to annul and set aside the 3.1.4 Buses:
Decisions of the Regional Trial Court of Olongapo City, Branch 72, in
Civil Case No. 20-0-04 and Civil Case No. 22-0-04, both dated May 24, 1. with GVW of 6-12 tons covered by an
2004; and the February 14, 2005 Decision of the Court of Appeals in authority to import issued by DTI;
CA-G.R. SP. No. 83284, which declared Article 2, Section 3.1 of
Executive Order No. 156 (EO 156) unconstitutional. Said executive 2. with GVW above 12 tons.
issuance prohibits the importation into the country, inclusive of the
Special Economic and Freeport Zone or the Subic Bay Freeport (SBF
3.1.5 Special purpose vehicles:
or Freeport), of used motor vehicles, subject to a few exceptions.
1. fire trucks
The undisputed facts show that on December 12, 2002, President
Gloria Macapagal-Arroyo, through Executive Secretary Alberto G.
Romulo, issued EO 156, entitled "Providing for a comprehensive 2. ambulances
industrial policy and directions for the motor vehicle development
program and its implementing guidelines." The challenged provision 3. funeral hearse/coaches
states:
4. crane lorries

5. tractor heads and truck tractors

6. boom trucks The issuance of EO 156 spawned three separate actions for
declaratory relief before Branch 72 of the Regional Trial Court of
7. tanker trucks Olongapo City, all seeking the declaration of the unconstitutionality of
Article 2, Section 3.1 of said executive order. The cases were filed by
8. tank lorries with high pressure spray gun herein respondent entities, who or whose members, are classified as
Subic Bay Freeport Enterprises and engaged in the business of,
among others, importing and/or trading used motor vehicles.
9. reefers or refrigerated trucks
G.R. No. 164171:
10. mobile drilling derricks
On January 16, 2004, respondents Southwing Heavy Industries, Inc.,
11. transit/concrete mixers
(Southwing) United Auctioneers, Inc. (United Auctioneers), and
Microvan, Inc. (Microvan), instituted a declaratory relief case docketed
12. mobile radiological units as Civil Case No. 20-0-04,1 against the Executive Secretary, Secretary
of Transportation and Communication, Commissioner of Customs,
13. wreckers or tow trucks Assistant Secretary and Head of the Land Transportation Office, Subic
Bay Metropolitan Authority (SBMA), Collector of Customs for the Port
14. concrete pump trucks at Subic Bay Freeport Zone, and the Chief of the Land Transportation
Office at Subic Bay Freeport Zone.
15. aerial/bucket flat-form trucks
Southwing, United Auctioneers and Microvan prayed that judgment be
16. street sweepers rendered (1) declaring Article 2, Section 3.1 of EO 156 unconstitutional
and illegal; (2) directing the Secretary of Finance, Commissioner of
17. vacuum trucks Customs, Collector of Customs and the Chairman of the SBMA to
allow the importation of used motor vehicles; (2) ordering the Land
18. garbage compactors Transportation Office and its subordinates inside the Subic Special
Economic Zone to process the registration of the imported used motor
vehicles; and (3) in general, to allow the unimpeded entry and
19. self loader trucks importation of used motor vehicles subject only to the payment of the
required customs duties.
20. man lift trucks
Upon filing of petitioners’ answer/comment, respondents Southwing
21. lighting trucks and Microvan filed a motion for summary judgment which was granted
by the trial court. On May 24, 2004, a summary judgment was
22. trucks mounted with special purpose rendered declaring that Article 2, Section 3.1 of EO 156 constitutes an
equipment unlawful usurpation of legislative power vested by the Constitution with
Congress. The trial court further held that the proviso is contrary to the
23. all other types of vehicle designed for a mandate of Republic Act No. 7227 (RA 7227) or the Bases Conversion
specific use. and Development Act of 1992 which allows the free flow of goods and
capital within the Freeport. The dispositive portion of the said decision
reads:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of Customs
based at SBMA to allow the importation and entry of used motor
vehicles pursuant to the mandate of RA 7227; directing respondent
Chief of the Land Transportation Office and its subordinates inside the
Subic Special Economic Zone or SBMA to process the registration of
imported used motor vehicle; and in general, to allow unimpeded entry
and importation of used motor vehicles to the Philippines subject only
to the payment of the required customs duties.
SO ORDERED.2
From the foregoing decision, petitioners sought relief before this
Court via a petition for review on certiorari, docketed as G.R. No.
164171.
G.R. No. 164172:
On January 20, 2004, respondent Subic Integrated Macro Ventures
Corporation (Macro Ventures) filed with the same trial court, a similar
action for declaratory relief docketed as Civil Case No. 22-0-04,3 with
the same prayer and against the same parties4 as those in Civil Case
No. 20-0-04.
In this case, the trial court likewise rendered a summary judgment on
May 24, 2004, holding that Article 2, Section 3.1 of EO 156, is
repugnant to the constitution.5 Elevated to this Court via a petition for
review on certiorari, Civil Case No. 22-0-04 was docketed as G.R. No.
164172.
G.R. No. 168741
On January 22, 2003, respondent Motor Vehicle Importers Association
of Subic Bay Freeport, Inc. (Association), filed another action for
declaratory relief with essentially the same prayer as those in Civil
Case No. 22-0-04 and Civil Case No. 20-0-04, against the Executive
Secretary, Secretary of Finance, Chief of the Land Transportation
Office, Commissioner of Customs, Collector of Customs at SBMA and
the Chairman of SBMA. This was docketed as Civil Case No. 30-0-
2003,6 before the same trial court.
In a decision dated March 10, 2004, the court a quo granted the
Association’s prayer and declared the assailed proviso as contrary to
the Constitution, to wit:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of Customs
based at SBMA to allow the importation and entry of used motor
vehicles pursuant to the mandate of RA 7227; directing respondent
Chief of the Land Transportation Office and its subordinates inside the
Subic Special Economic Zone or SBMA to process the registration of
imported used motor vehicles; directing the respondent Chairman of
the SBMA to allow the entry into the Subic Special Economic Zone or
SBMA imported used motor vehicle; and in general, to allow
unimpeded entry and importation of used motor vehicles to the
Philippines subject only to the payment of the required customs duties.
SO ORDERED.7
Aggrieved, the petitioners in Civil Case No. 30-0-2003, filed a petition
for certiorari8 with the Court of Appeals (CA-G.R. SP. No. 83284) which
denied the petition on February 14, 2005 and sustained the finding of
the trial court that Article 2, Section 3.1 of EO 156, is void for being
repugnant to the constitution. The dispositive portion thereof, reads:
WHEREFORE, the instant petition for certiorari is hereby DENIED. The
assailed decision of the Regional Trial Court, Third Judicial Region,
Branch 72, Olongapo City, in Civil Case No. 30-0-2003, accordingly,
STANDS.
SO ORDERED.9
The aforequoted decision of the Court of Appeals was elevated to this
Court and docketed as G.R. No. 168741. In a Resolution dated
October 4, 2005,10 said case was consolidated with G.R. No. 164171
and G.R. No. 164172.
Petitioners are now before this Court contending that Article 2, Section
3.1 of EO 156 is valid and applicable to the entire country, including the
Freeeport. In support of their arguments, they raise procedural and
substantive issues bearing on the constitutionality of the assailed
proviso. The procedural issues are: the lack of respondents’ locus
standi to question the validity of EO 156, the propriety of challenging
EO 156 in a declaratory relief proceeding and the applicability of a
judgment on the pleadings in this case.
Petitioners argue that respondents will not be affected by the
importation ban considering that their certificate of registration and tax
exemption do not authorize them to engage in the importation and/or
trading of used cars. They also aver that the actions filed by
respondents do not qualify as declaratory relief cases. Section 1, Rule
63 of the Rules of Court provides that a petition for declaratory relief
may be filed before there is a breach or violation of rights. Petitioners
claim that there was already a breach of respondents’ supposed right
because the cases were filed more than a year after the issuance of
EO 156. In fact, in Civil Case No. 30-0-2003, numerous warrants of
seizure and detention were issued against imported used motor
vehicles belonging to respondent Association’s members.
Petitioners’ arguments lack merit.
The established rule that the constitutionality of a law or administrative
issuance can be challenged by one who will sustain a direct injury as a
result of its enforcement11 has been satisfied in the instant case. The
broad subject of the prohibited importation is "all types of used motor
vehicles." Respondents would definitely suffer a direct injury from the
implementation of EO 156 because their certificate of registration and
tax exemption authorize them to trade and/or import new and
used motor vehicles and spare parts, except "used cars."12 Other
types of motor vehicles imported and/or traded by respondents and not
falling within the category of used cars would thus be subjected to the
ban to the prejudice of their business. Undoubtedly, respondents have
the legal standing to assail the validity of EO 156.
As to the propriety of declaratory relief as a vehicle for assailing the
executive issuance, suffice it to state that any breach of the rights of
respondents will not affect the case. In Commission on Audit of the
Province of Cebu v. Province of Cebu,13 the Court entertained a suit for
declaratory relief to finally settle the doubt as to the proper
interpretation of the conflicting laws involved, notwithstanding a
violation of the right of the party affected. We find no reason to deviate
from said ruling mindful of the significance of the present case to the
national economy.
So also, summary judgments were properly rendered by the trial court
because the issues involved in the instant case were pure questions of
law. A motion for summary judgment is premised on the assumption
that the issues presented need not be tried either because these are
patently devoid of substance or that there is no genuine issue as to any
pertinent fact. It is a method sanctioned by the Rules of Court for the
prompt disposition of a civil action in which the pleadings raise only a
legal issue, not a genuine issue as to any material fact.14
At any rate, even assuming the procedural flaws raised by petitioners
truly exist, the Court is not precluded from brushing aside these
technicalities and taking cognizance of the action filed by respondents
considering its importance to the public and in keeping with the duty to
determine whether the other branches of the government have kept
themselves within the limits of the Constitution.15
We now come to the substantive issues, which are: (1) whether there
is statutory basis for the issuance of EO 156; and (2) if the answer is in
the affirmative, whether the application of Article 2, Section 3.1 of EO
156, reasonable and within the scope provided by law.
The main thrust of the petition is that EO 156 is constitutional because
it was issued pursuant to EO 226, the Omnibus Investment Code of the
Philippines and that its application should be extended to the Freeport
because the guarantee of RA 7227 on the free flow of goods into the
said zone is merely an exemption from customs duties and taxes on
items brought into the Freeport and not an open floodgate for all kinds
of goods and materials without restriction.
In G.R. No. 168741, the Court of Appeals invalidated Article 2, Section
3.1 of EO 156, on the ground of lack of any statutory basis for the
President to issue the same. It held that the prohibition on the
importation of used motor vehicles is an exercise of police power
vested on the legislature and absent any enabling law, the exercise
thereof by the President through an executive issuance, is void.
Police power is inherent in a government to enact laws, within
constitutional limits, to promote the order, safety, health, morals, and
general welfare of society. It is lodged primarily with the legislature. By
virtue of a valid delegation of legislative power, it may also be
exercised by the President and administrative boards, as well as the
lawmaking bodies on all municipal levels, including the
barangay.16 Such delegation confers upon the President quasi-
legislative power which may be defined as the authority delegated by
the law-making body to the administrative body to adopt rules and
regulations intended to carry out the provisions of the law and
implement legislative policy.17 To be valid, an administrative issuance,
such as an executive order, must comply with the following requisites:
(1) Its promulgation must be authorized by the legislature;
(2) It must be promulgated in accordance with the prescribed
procedure;
(3) It must be within the scope of the authority given by the
legislature; and
(4) It must be reasonable.18
Contrary to the conclusion of the Court of Appeals, EO 156 actually
satisfied the first requisite of a valid administrative order. It has both
constitutional and statutory bases.
Delegation of legislative powers to the President is permitted in Section
28(2) of Article VI of the Constitution. It provides:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.19 (Emphasis
supplied)
The relevant statutes to execute this provision are:
1) The Tariff and Customs Code which authorizes the President, in
the interest of national economy, general welfare and/or national
security, to, inter alia, prohibit the importation of any commodity.
Section 401 thereof, reads:
Sec. 401. Flexible Clause. —
a. In the interest of national economy, general welfare and/or
national security, and subject to the limitations herein prescribed,
the President, upon recommendation of the National Economic
and Development Authority (hereinafter referred to as NEDA), is
hereby empowered: x x x (2) to establish import quota or to ban
imports of any commodity, as may be necessary; x x x Provided,
That upon periodic investigations by the Tariff Commission and
recommendation of the NEDA, the President may cause a gradual
reduction of protection levels granted in Section One hundred and four
of this Code, including those subsequently granted pursuant to this
section. (Emphasis supplied)
2) Executive Order No. 226, the Omnibus Investment Code of the
Philippines which was issued on July 16, 1987, by then President
Corazon C. Aquino, in the exercise of legislative power under the
Provisional Freedom Constitution,20 empowers the President to
approve or reject the prohibition on the importation of any equipment or
raw materials or finished products. Pertinent provisions thereof, read:
ART. 4. Composition of the board. The Board of Investments shall be
composed of seven (7) governors: The Secretary of Trade and
Industry, three (3) Undersecretaries of Trade and Industry to be
chosen by the President; and three (3) representatives from the
government agencies and the private sector x x x.
ART. 7. Powers and duties of the Board.
xxxx
(12) Formulate and implement rationalization programs for certain
industries whose operation may result in dislocation, overcrowding or
inefficient use of resources, thus impeding economic growth. For this
purpose, the Board may formulate guidelines for progressive
manufacturing programs, local content programs, mandatory sourcing
requirements and dispersal of industries. In appropriate cases and
upon approval of the President, the Board may restrict, either
totally or partially, the importation of any equipment or raw
materials or finished products involved in the rationalization
program; (Emphasis supplied)
3) Republic Act No. 8800, otherwise known as the "Safeguard
Measures Act" (SMA), and entitled "An Act Protecting Local Industries
By Providing Safeguard Measures To Be Undertaken In Response To
Increased Imports And Providing Penalties For Violation
Thereof,"21 designated the Secretaries22 of the Department of Trade
and Industry (DTI) and the Department of Agriculture, in their capacity
as alter egos of the President, as the implementing authorities of the
safeguard measures, which include, inter alia, modification or
imposition of any quantitative restriction on the importation of a product
into the Philippines. The purpose of the SMA is stated in the
declaration of policy, thus:
SEC. 2. Declaration of Policy. – The State shall promote
competitiveness of domestic industries and producers based on sound
industrial and agricultural development policies, and efficient use of
human, natural and technical resources. In pursuit of this goal and in
the public interest, the State shall provide safeguard measures to
protect domestic industries and producers from increased imports
which cause or threaten to cause serious injury to those domestic
industries and producers.
There are thus explicit constitutional and statutory permission
authorizing the President to ban or regulate importation of articles and
commodities into the country.
Anent the second requisite, that is, that the order must be issued or
promulgated in accordance with the prescribed procedure, it is
necessary that the nature of the administrative issuance is properly
determined. As in the enactment of laws, the general rule is that, the
promulgation of administrative issuances requires previous notice and
hearing, the only exception being where the legislature itself requires it
and mandates that the regulation shall be based on certain facts as
determined at an appropriate investigation.23 This exception pertains to
the issuance of legislative rules as distinguished from interpretative
rules which give no real consequence more than what the law itself
has already prescribed;24 and are designed merely to provide
guidelines to the law which the administrative agency is in charge of
enforcing.25 A legislative rule, on the other hand, is in the nature of
subordinate legislation, crafted to implement a primary legislation.
In Commissioner of Internal Revenue v. Court of
Appeals,26 and Commissioner of Internal Revenue v. Michel J. Lhuillier
Pawnshop, Inc.,27 the Court enunciated the doctrine that when an
administrative rule goes beyond merely providing for the means that
can facilitate or render less cumbersome the implementation of the law
and substantially increases the burden of those governed, it behooves
the agency to accord at least to those directly affected a chance to be
heard and, thereafter, to be duly informed, before the issuance is given
the force and effect of law.
In the instant case, EO 156 is obviously a legislative rule as it seeks to
implement or execute primary legislative enactments intended to
protect the domestic industry by imposing a ban on the importation of a
specified product not previously subject to such prohibition. The due
process requirements in the issuance thereof are embodied in Section
40128 of the Tariff and Customs Code and Sections 5 and 9 of the
SMA29 which essentially mandate the conduct of investigation and
public hearings before the regulatory measure or importation ban may
be issued.
In the present case, respondents neither questioned before this Court
nor with the courts below the procedure that paved the way for the
issuance of EO 156. What they challenged in their petitions before the
trial court was the absence of "substantive due process" in the
issuance of the EO.30 Their main contention before the court a quo is
that the importation ban is illogical and unfair because it unreasonably
drives them out of business to the prejudice of the national economy.
Considering the settled principle that in the absence of strong evidence
to the contrary, acts of the other branches of the government are
presumed to be valid,31 and there being no objection from the
respondents as to the procedure in the promulgation of EO 156, the
presumption is that said executive issuance duly complied with the
procedures and limitations imposed by law.
To determine whether EO 156 has complied with the third and fourth
requisites of a valid administrative issuance, to wit, that it was issued
within the scope of authority given by the legislature and that it is
reasonable, an examination of the nature of a Freeport under RA 7227
and the primordial purpose of the importation ban under the questioned
EO is necessary.
RA 7227 was enacted providing for, among other things, the sound
and balanced conversion of the Clark and Subic military reservations
and their extensions into alternative productive uses in the form of
Special Economic and Freeport Zone, or the Subic Bay Freeport, in
order to promote the economic and social development of Central
Luzon in particular and the country in general.
The Rules and Regulations Implementing RA 7227 specifically defines
the territory comprising the Subic Bay Freeport, referred to as the
Special Economic and Freeport Zone in Section 12 of RA 7227 as "a
separate customs territory consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands occupied by the
Subic Naval Base and its contiguous extensions as embraced, covered
and defined by the 1947 Philippine-U.S. Military Base Agreement as
amended and within the territorial jurisdiction of Morong and Hermosa,
Province of Bataan, the metes and bounds of which shall be delineated
by the President of the Philippines; provided further that pending
establishment of secure perimeters around the entire SBF, the SBF
shall refer to the area demarcated by the SBMA pursuant to Section
1332 hereof."
Among the salient provisions of RA 7227 are as follows:
SECTION 12. Subic Special Economic Zone. —
xxxx
The abovementioned zone shall be subject to the following policies:
xxxx
(a) Within the framework and subject to the mandate and
limitations of the Constitution and the pertinent provisions of
the Local Government Code, the Subic Special Economic Zone
shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate
employment opportunities in and around the zone and to attract
and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and
managed as a separate customs territory ensuring free flow or
movement of goods and capital within, into and exported out of
the Subic Special Economic Zone, as well as provide
incentives such as tax and duty-free importations of raw
materials, capital and equipment. However, exportation or
removal of goods from the territory of the Subic Special
Economic Zone to the other parts of the Philippine territory
shall be subject to customs duties and taxes under the
Customs and Tariff Code and other relevant tax laws of the
Philippines;
The Freeport was designed to ensure free flow or movement of goods
and capital within a portion of the Philippine territory in order to attract
investors to invest their capital in a business climate with the least
governmental intervention. The concept of this zone was explained by
Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is
successful in many places, particularly Hong Kong, which is a free port.
The difference between a special economic zone and an industrial
estate is simply expansive in the sense that the commercial activities,
including the establishment of banks, services, financial institutions,
agro-industrial activities, maybe agriculture to a certain extent.
This delineates the activities that would have the least of
government intervention, and the running of the affairs of the
special economic zone would be run principally by the investors
themselves, similar to a housing subdivision, where the
subdivision owners elect their representatives to run the affairs of
the subdivision, to set the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong,
Mr. President, where there is a hub of free port and free entry, free
duties and activities to a maximum spur generation of investment
and jobs.
While the investor is reluctant to come in the Philippines, as a rule,
because of red tape and perceived delays, we envision this special
economic zone to be an area where there will be minimum government
interference.
The initial outlay may not only come from the Government or the
Authority as envisioned here, but from them themselves, because they
would be encouraged to invest not only for the land but also for the
buildings and factories. As long as they are convinced that in such an
area they can do business and reap reasonable profits, then many
from other parts, both local and foreign, would invest, Mr.
President.33 (Emphasis, added)
With minimum interference from the government, investors can, in
general, engage in any kind of business as well as import and export
any article into and out of the Freeport. These are among the rights
accorded to Subic Bay Freeport Enterprises under Section 39 of the
Rules and Regulations Implementing RA 7227, thus –
SEC. 39. Rights and Obligations.- SBF Enterprises shall have the
following rights and obligations:
a. To freely engage in any business, trade, manufacturing, financial or
service activity, and to import and export freely all types of goods into
and out of the SBF, subject to the provisions of the Act, these Rules
and other regulations that may be promulgated by the SBMA;
Citing, inter alia, the interpellations of Senator Enrile, petitioners claim
that the "free flow or movement of goods and capital" only means that
goods and material brought within the Freeport shall not be subject to
customs duties and other taxes and should not be construed as an
open floodgate for entry of all kinds of goods. They thus surmise that
the importation ban on motor vehicles is applicable within the Freeport.
Pertinent interpellations of Senator Enrile on the concept of Freeport is
as follows:
Senator Enrile: Mr. President, I think we are talking here of sovereign
concepts, not territorial concepts. The concept that we are supposed to
craft here is to carve out a portion of our terrestrial domain as well as
our adjacent waters and say to the world: "Well, you can set up your
factories in this area that we are circumscribing, and bringing your
equipment and bringing your goods, you are not subject to any taxes
and duties because you are not within the customs jurisdiction of the
Republic of the Philippines, whether you store the goods or only for
purposes of transshipment or whether you make them into finished
products again to be reexported to other lands."
xxxx
My understanding of a "free port" is, we are in effect carving out a
part of our territory and make it as if it were foreign territory for
purposes of our customs laws, and that people can come, bring
their goods, store them there and bring them out again, as long as
they do not come into the domestic commerce of the Republic.
We do not really care whether these goods are stored here. The only
thing that we care is for our people to have an employment because of
the entry of these goods that are being discharged, warehoused and
reloaded into the ships so that they can be exported. That will generate
employment for us. For as long as that is done, we are saying, in
effect, that we have the least contact with our tariff and customs laws
and our tax laws. Therefore, we consider these goods as outside of the
customs jurisdiction of the Republic of the Philippines as yet, until we
draw them from this territory and bring them inside our domestic
commerce. In which case, they have to pass through our customs
gate. I thought we are carving out this entire area and convert it into
this kind of concept.34
However, contrary to the claim of petitioners, there is nothing in the
foregoing excerpts which absolutely limits the incentive to Freeport
investors only to exemption from customs duties and taxes. Mindful of
the legislative intent to attract investors, enhance investment and boost
the economy, the legislature could not have limited the enticement only
to exemption from taxes. The minimum interference policy of the
government on the Freeport extends to the kind of business that
investors may embark on and the articles which they may import or
export into and out of the zone. A contrary interpretation would defeat
the very purpose of the Freeport and drive away investors.
It does not mean, however, that the right of Freeport enterprises to
import all types of goods and article is absolute. Such right is of course
subject to the limitation that articles absolutely prohibited by law cannot
be imported into the Freeport.35 Nevertheless, in determining whether
the prohibition would apply to the Freeport, resort to the purpose of the
prohibition is necessary.
In issuing EO 156, particularly the prohibition on importation under
Article 2, Section 3.1, the President envisioned to rationalize the
importation of used motor vehicles and to enhance the capabilities of
the Philippine motor manufacturing firms to be globally competitive
producers of completely build-up units and their parts and components
for the local and export markets.36 In justifying the issuance of EO 156,
petitioners alleged that there has been a decline in the sales of new
vehicles and a remarkable growth of the sales of imported used motor
vehicles. To address the same, the President issued the questioned
EO to prevent further erosion of the already depressed market base of
the local motor vehicle industry and to curtail the harmful effects of the
increase in the importation of used motor vehicles.37
Taking our bearings from the foregoing discussions, we hold that the
importation ban runs afoul the third requisitefor a valid administrative
order. To be valid, an administrative issuance must not be ultra vires or
beyond the limits of the authority conferred. It must not supplant or
modify the Constitution, its enabling statute and other existing laws, for
such is the sole function of the legislature which the other branches of
the government cannot usurp. As held in United BF Homeowner’s
Association v. BF Homes, Inc.:38
The rule-making power of a public administrative body is a delegated
legislative power, which it may not use either to abridge the authority
given it by Congress or the Constitution or to enlarge its power beyond
the scope intended. Constitutional and statutory provisions control
what rules and regulations may be promulgated by such a body, as
well as with respect to what fields are subject to regulation by it. It may
not make rules and regulations which are inconsistent with the
provisions of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in derogation of, or
defeat, the purpose of a statute.
In the instant case, the subject matter of the laws authorizing the
President to regulate or forbid importation of used motor vehicles, is
the domestic industry. EO 156, however, exceeded the scope of its
application by extending the prohibition on the importation of used cars
to the Freeport, which RA 7227, considers to some extent, a foreign
territory. The domestic industry which the EO seeks to protect is
actually the "customs territory" which is defined under the Rules and
Regulations Implementing RA 7227, as follows:
"the portion of the Philippines outside the Subic Bay Freeport
where the Tariff and Customs Code of the Philippines and other
national tariff and customs laws are in force and effect."39
The proscription in the importation of used motor vehicles should be
operative only outside the Freeport and the inclusion of said zone
within the ambit of the prohibition is an invalid modification of RA 7227.
Indeed, when the application of an administrative issuance modifies
existing laws or exceeds the intended scope, as in the instant case, the
issuance becomes void, not only for being ultra vires, but also for being
unreasonable.
This brings us to the fourth requisite. It is an axiom in administrative
law that administrative authorities should not act arbitrarily and
capriciously in the issuance of rules and regulations. To be valid, such
rules and regulations must be reasonable and fairly adapted to secure
the end in view. If shown to bear no reasonable relation to the
purposes for which they were authorized to be issued, then they must
be held to be invalid.40
There is no doubt that the issuance of the ban to protect the domestic
industry is a reasonable exercise of police power. The deterioration of
the local motor manufacturing firms due to the influx of imported used
motor vehicles is an urgent national concern that needs to be swiftly
addressed by the President. In the exercise of delegated police power,
the executive can therefore validly proscribe the importation of these
vehicles. Thus, in Taxicab Operators of Metro Manila, Inc. v. Board of
Transportation,41 the Court held that a regulation phasing out taxi cabs
more than six years old is a valid exercise of police power. The
regulation was sustained as reasonable holding that the purpose
thereof was to promote the convenience and comfort and protect the
safety of the passengers.
The problem, however, lies with respect to the application of the
importation ban to the Freeport. The Court finds no logic in the all
encompassing application of the assailed provision to the Freeport
which is outside the customs territory. As long as the used motor
vehicles do not enter the customs territory, the injury or harm sought to
be prevented or remedied will not arise. The application of the law
should be consistent with the purpose of and reason for the
law. Ratione cessat lex, et cessat lex. When the reason for the law
ceases, the law ceases. It is not the letter alone but the spirit of the law
also that gives it life.42 To apply the proscription to the Freeport would
not serve the purpose of the EO. Instead of improving the general
economy of the country, the application of the importation ban in the
Freeport would subvert the avowed purpose of RA 7227 which is to
create a market that would draw investors and ultimately boost the
national economy.
In similar cases, we also declared void the administrative issuance or
ordinances concerned for being unreasonable. To illustrate, in De la
Cruz v. Paras,43 the Court held as unreasonable and unconstitutional
an ordinance characterized by overbreadth. In that case, the
Municipality of Bocaue, Bulacan, prohibited the operation of all night
clubs, cabarets and dance halls within its jurisdiction for the protection
of public morals. As explained by the Court:
x x x It cannot be said that such a sweeping exercise of a lawmaking
power by Bocaue could qualify under the term reasonable. The
objective of fostering public morals, a worthy and desirable end can be
attained by a measure that does not encompass too wide a field.
Certainly the ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been attained by
reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not
lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation." It is
clear that in the guise of a police regulation, there was in this instance
a clear invasion of personal or property rights, personal in the case of
those individuals desirous of patronizing those night clubs and property
in terms of the investments made and salaries to be earned by those
therein employed.
Lupangco v. Court of Appeals,44 is a case involving a resolution issued
by the Professional Regulation Commission which prohibited
examinees from attending review classes and receiving handout
materials, tips, and the like three days before the date of examination
in order to preserve the integrity and purity of the licensure
examinations in accountancy. Besides being unreasonable on its face
and violative of academic freedom, the measure was found to be more
sweeping than what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a
guarantee that the alleged leakages in the licensure examinations will
be eradicated or at least minimized. Making the examinees suffer by
depriving them of legitimate means of review or preparation on those
last three precious days — when they should be refreshing themselves
with all that they have learned in the review classes and preparing their
mental and psychological make-up for the examination day itself —
would be like uprooting the tree to get rid of a rotten branch. What is
needed to be done by the respondent is to find out the source of such
leakages and stop it right there. If corrupt officials or personnel should
be terminated from their loss, then so be it. Fixers or swindlers should
be flushed out. Strict guidelines to be observed by examiners should
be set up and if violations are committed, then licenses should be
suspended or revoked. x x x
In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,45 the Court
likewise struck down as unreasonable and overbreadth a city
ordinance granting an exclusive franchise for 25 years, renewable for
another 25 years, to one entity for the construction and operation of
one common bus and jeepney terminal facility in Lucena City. While
professedly aimed towards alleviating the traffic congestion alleged to
have been caused by the existence of various bus and jeepney
terminals within the city, the ordinance was held to be beyond what is
reasonably necessary to solve the traffic problem in the city.
By parity of reasoning, the importation ban in this case should also be
declared void for its too sweeping and unnecessary application to the
Freeport which has no bearing on the objective of the prohibition. If the
aim of the EO is to prevent the entry of used motor vehicles from the
Freeport to the customs territory, the solution is not to forbid entry of
these vehicles into the Freeport, but to intensify governmental
campaign and measures to thwart illegal ingress of used motor
vehicles into the customs territory.
At this juncture, it must be mentioned that on June 19, 1993, President
Fidel V. Ramos issued Executive Order No. 97-A, "Further Clarifying
The Tax And Duty-Free Privilege Within The Subic Special Economic
And Free Port Zone," Section 1 of which provides:
SECTION 1. The following guidelines shall govern the tax and duty-
free privilege within the Secured Area of the Subic Special Economic
and Free Port Zone:
1.1. The Secured Area consisting of the presently fenced-in former
Subic Naval Base shall be the only completely tax and duty-free area
in the SSEFPZ. Business enterprises and individuals (Filipinos and
foreigners) residing within the Secured Area are free to import raw
materials, capital goods, equipment, and consumer items tax and
dutry-free. Consumption items, however, must be consumed within the
Secured Area. Removal of raw materials, capital goods, equipment
and consumer items out of the Secured Area for sale to non-SSEFPZ
registered enterprises shall be subject to the usual taxes and duties,
except as may be provided herein.
valid insofar as it applies to the customs territory or the Philippine
territory outside the presently secured fenced-in former Subic Naval
Base area as stated in Section 1.1 of EO 97-A. Hence, used motor
vehicles that come into the Philippine territory via the secured fenced-
in former Subic Naval Base area may be stored, used or traded
therein, or exported out of the Philippine territory, but they cannot be
imported into the Philippine territory outside of the secured fenced-in
former Subic Naval Base area.
WHEREFORE, the petitions are PARTIALLY GRANTED and the May
24, 2004 Decisions of Branch 72, Regional Trial Court of Olongapo
City, in Civil Case No. 20-0-04 and Civil Case No. 22-0-04; and the
February 14, 2005 Decision of the Court of Appeals in CA-G.R. SP No.
63284, are MODIFIED insofar as they declared Article 2, Section 3.1 of
Executive Order No. 156, void in its entirety.
Said provision is declared VALID insofar as it applies to the Philippine
territory outside the presently fenced-in former Subic Naval Base area
and VOID with respect to its application to the secured fenced-in
former Subic Naval Base area.
SO ORDERED.

In Tiu v. Court of Appeals46 as reiterated in Coconut Oil Refiners

Association, Inc. v. Torres,47 this provision limiting the special privileges
on tax and duty-free importation in the presently fenced-in former Subic
Naval Base has been declared valid and constitutional and in
accordance with RA 7227. Consistent with these rulings and for easier
management and monitoring of activities and to prevent fraudulent
importation of merchandise and smuggling, the free flow and
importation of used motor vehicles shall be operative only within the
"secured area."

In sum, the Court finds that Article 2, Section 3.1 of EO 156 is void
insofar as it is made applicable to the presently secured fenced-in
former Subic Naval Base area as stated in Section 1.1 of EO 97-A.
Pursuant to the separability clause48 of EO 156, Section 3.1 is declared
G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all

surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA
SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed
FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by
her parents SIGRID and DOLORES FORTUN, GEORGE II and MA.
CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and
MARIE GABRIELLE, all surnamed SAENZ, minors, represented by
their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY
ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed
KING, minors, represented by their parents MARIO and HAYDEE
KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and
MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents
MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL,
and IMEE LYN, all surnamed OPOSA, minors and represented by
their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI
QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their
parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his
capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of
whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest
the unabated hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was
filed before Branch 66 (Makati, Metro Manila) of the Regional Trial
Court (RTC), National Capital Judicial Region. The principal plaintiffs
therein, now the principal petitioners, are all minors duly represented
and joined by their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic,
non-stock and non-profit corporation organized for the purpose of, inter
alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources (DENR). His
substitution in this petition by the new Secretary, the Honorable Angel
C. Alcala, was subsequently ordered upon proper motion by the
petitioners.1 The complaint2 was instituted as a taxpayers' class
suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others who
are equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn."4 Consequently, it is
prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and
other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable
under the premises."5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million
(30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna
may be found; these rainforests contain a genetic, biological and
chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence reveals that in
order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent
(54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have
resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known
as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural productivity, with
the volume of soil eroded estimated at one billion (1,000,000,000)
cubic meters per annum — approximately the size of the entire island
of Catanduanes, (d) the endangering and extinction of the country's
unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a
critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural plains
arising from the absence of the absorbent mechanism of forests, (j) the
siltation and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k)
the reduction of the earth's capacity to process carbon dioxide gases
which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences
of continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing
allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land
area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature
and uneconomical secondary growth forests.
11. Public records reveal that the defendant's,
predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate
area of 3.89 million hectares for commercial logging
purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about
200,000 hectares per annum or 25 hectares per hour
— nighttime, Saturdays, Sundays and holidays
included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not
earlier.
13. The adverse effects, disastrous consequences,
serious injury and irreparable damage of this continued
trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are
already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA
holders to cut and deforest the remaining forest stands
will work great damage and irreparable injury to
plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from
and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation
and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is
hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and
devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly
blessed with.
19. Defendant's refusal to cancel the aforementioned
TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy
which, in pertinent part, states that it is the policy of the
State —
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive
and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements
of present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality
that is conductive to a life of dignity and well-being.
(P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to
cancel the aforementioned TLA's is contradictory to the
Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage
and resources (sic)" (Section 14, Article XIV, id.);
 d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to the highest
law of humankind — the natural law — and violative of
plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate
remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed
a Motion to Dismiss the complaint based on two (2) grounds, namely:
(1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to
the legislative or executive branches of Government. In their 12 July
1990 Opposition to the Motion, the petitioners maintain that (1) the
complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim — that the complaint states no cause of action
against him and that it raises a political question — sustained, the
respondent Judge further ruled that the granting of the relief prayed for
would result in the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under
Rule 65 of the Revised Rules of Court and ask this Court to rescind
and set aside the dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the action. Again,
the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the
Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states
a cause of action as it contains sufficient allegations concerning their
right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No.
192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the
1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal
Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on
the respondent's correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements
(TLAs) to cover more areas for logging than what is available involves
a judicial question.
Anent the invocation by the respondent Judge of the Constitution's
non-impairment clause, petitioners maintain that the same does not
apply in this case because TLAs are not contracts. They likewise
submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State
when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to
allege in their complaint a specific legal right violated by the
respondent Secretary for which any relief is provided by law. They see
nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or
legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit
that the same cannot be done by the State without due process of law.
Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been found,
after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural
matters. Petitioners instituted Civil Case No. 90-777 as a class suit.
The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to bring all of them
before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid
class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter
being but an incident to the former.
This case, however, has a special and novel element. Petitioners
minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world
in its entirety.9 Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10Needless to say, every
generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to
come.
The locus standi of the petitioners having thus been addressed, We
shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments
adduced by the parties, We do not hesitate to find for the petitioners
and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal
right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court
notes that the Complaint is replete with vague
assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of
action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter
before it, being impressed with political color and
involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to
 the sacred principle of "Separation of Powers" of the
three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot,
no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and
to cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements. For to do otherwise would amount to
"impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs
failed to allege with sufficient definiteness a specific legal right involved
or a specific legal wrong committed, and that the complaint is replete
with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the
right to a balanced and healthful ecology which, for the first time in our
nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution
explicitly provides:
Sec. 16. The State shall protect and advance the right
of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
This right unites with the right to health which is
provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right
to health of the people and instill health consciousness
among them.
While the right to a balanced and healthful ecology is to be found under
the Declaration of Principles and State Policies and not under the Bill
of Rights, it does not follow that it is less important than any of the civil
and political rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly stressed by
the petitioners — the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when all
else would be lost not only for the present generation, but also for
those to come — generations which stand to inherit nothing but
parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. During the
debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna
who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution — air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to
healthful (sic) environment necessarily
carries with it the correlative duty of not
impairing the same and, therefore,
sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related provisions
of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon
C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and
proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including
those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared
the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas
and other natural resources, including the protection
and enhancement of the quality of the environment,
and equitable access of the different segments of the
population to the development and the use of the
country's natural resources, not only for the present
generation but for future generations as well. It is also
the policy of the state to recognize and apply a true
value system including social and environmental cost
implications relative to their utilization, development
and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of
the Administrative Code of 1987,15 specifically in Section 1 thereof
which reads:
Sec. 1. Declaration of Policy. — (1) The State shall
ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the
objective of making the exploration, development and
utilization of such natural resources equitably
accessible to the different segments of the present as
well as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the
utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes
particular reference to the fact of the agency's being subject to law and
higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of
Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing
policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional
mandate to control and supervise the exploration,
development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and
have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the
1987 Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop,
maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other, (b) to fulfill
the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-
being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty —
under its mandate and by virtue of its powers and functions under E.O.
No. 192 and the Administrative Code of 1987 — to protect and
advance the said right.
A denial or violation of that right by the other who has the corelative
duty or obligation to respect or protect the same gives rise to a cause
of action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the
legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action, 19 the question
submitted to the court for resolution involves the sufficiency of the facts
alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the
point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to
be true, may the court render a valid judgment in accordance with the
prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid
down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If
that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as
party defendants, the grantees thereof for they are indispensable
parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a
political question. Policy formulation or determination by the executive
or legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no
longer, the insurmountable obstacle to the exercise of judicial power or
the impenetrable shield that protects executive and legislative actions
from judicial inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
 whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book, Philippine Political
Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this
Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial
power to enable the courts of justice to review what
was before forbidden territory, to wit, the discretion of
the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and
the legislature and to declare their acts invalid for lack
or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very
elastic phrase that can expand or contract according to
the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court,
noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue
presented before us was political in nature, we would
still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the complaint is
the non-impairment of contracts clause found in the Constitution. The
court a quo declared that:
The Court is likewise of the impression that it cannot,
no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and
to cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements. For to do otherwise would amount to
"impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not
shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to
strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners,
into every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so
requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded
by executive action. It is not a contract, property or a property
right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A
 timber license is not a contract within the purview of the
due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal,
granting it and the person to whom it is granted; neither
is it property or a property right, nor does it create a
vested right; nor is it taxation (37 C.J. 168). Thus, this
Court held that the granting of license does not create
irrevocable rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements
are the principal instruments by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and
do not vest in the latter a permanent or irrevocable right
to the particular concession area and the forest
products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive
when national interests so require. Thus, they are not
deemed contracts within the purview of the due process
of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125
SCRA 302].
Since timber licenses are not contracts, the non-impairment clause,
which reads:
Sec. 10. No law impairing, the obligation of contracts
shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is
because by its very nature and purpose, such as law could have only
been passed in the exercise of the police power of the state for the
purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general
welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of
government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative
regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the
constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power
of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor
General,30 to wit:
Under our form of government the use of property and
the making of contracts are normally matters of private
and not of public concern. The general rule is that both
shall be free of governmental interference. But neither
property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use
his property to the detriment of his fellows, or exercise
his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of
the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin the
respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of
right. G.R. No. 228628

WHEREFORE, being impressed with merit, the instant Petition is REP. REYNALDO V. UMALI, in his capacity as Chairman of the
hereby GRANTED, and the challenged Order of respondent Judge of House of Representatives Committee on Justice and Ex Officio
18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The Member of the JBC, Petitioner
petitioners may therefore amend their complaint to implead as vs.
defendants the holders or grantees of the questioned timber license THE JUDICIAL AND BAR COUNCIL, chaired by THE HON. MARIA
agreements. LOURDES P.A. SERENO, Chief Justice and Ex Officio
Chairperson, Respondent
No pronouncement as to costs.
DECISION
SO ORDERED.
VELASCO, JR., J.:

Stare decisis et non quieta movere. This principle of adherence to

precedents has not lost its luster and continues to guide the bench in
keeping with the need to maintain stability in the law.1

This Petition for Certiorari and Mandamus under Rule 65 of the Rules
of Court filed directly with this Court by herein petitioner Rep. Reynaldo
V. Umali, current Chair of the House of Representatives Committee on
Justice, impugns the present-day practice of six-month rotational
representation of Congress in the Judicial and Bar Council (JBC) for it
unfairly deprives both Houses of Congress of their full participation in
the said body. The aforementioned practice was adopted by the JBC in
light of the ruling in Chavez v. Judicial and Bar Council.2

As an overview, in Chavez, the constitutionality of the practice of

having two representatives from both houses of Congress with one
vote each in the JBC, thus, increasing its membership from seven to
eight, was challenged. With that, this Court examined the constitutional
provision that states the composition of the JBC, that is, Section 8(1),
Article VIII of the 1987 Constitution, which reads:
SECTION 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector. (Emphasis supplied.)
Following a painstaking analysis, this Court, in a Decision dated July
17, 2012, declared the said practice of having two representatives from
Congress with one vote each in the JBC unconstitutional. This Court
enunciated that the use of the singular
letter "a" preceding "representative of the Congress" in the aforequoted
provision is unequivocal and leaves no room for any other construction
or interpretation. The same is indicative of the Framers' intent that
Congress may designate only one representative to the JBC. Had it
been otherwise, they could have, in no uncertain terms, so provided.
This Court further articulated that in the context of JBC representation,
the term "Congress" must be taken to mean the entire legislative
department as no liaison between the two houses exists in the
workings of the JBC. There is no mechanism required between the
Senate and the House of Representatives in the screening and
nomination of judicial officers. Moreover, this Court, quoting the keen
observation of Retired Supreme Court Associate Justice Consuelo
Ynares-Santiago, who is also a JBC Consultant, stated that the ex
officio members of the JBC consist of representatives from the three
main branches of government, to wit: the Chief Justice of the Supreme
Court representing the judiciary, the Secretary of Justice representing
the executive, and a representative of the Congress representing the
legislature. It can be deduced therefrom that the unmistakable tenor of
Section 8(1), Article VIII of the 1987 Constitution was to treat each ex
officio member as representing one co-equal branch of government
having equal say in the choice of judicial nominees. Now, to allow the
legislature to have more than one representative in the JBC would
negate the principle of equality among these three branches of the
government, which is enshrined in the Constitution.3
The subsequent motion for reconsideration thereof was denied in a
Resolution dated April 16, 2013, where this Court reiterated that
Section 8(1), Article VIII of the 1987 Constitution providing for "a
representative of the Congress" in the JBC is clear and unambiguous
and does not need any further interpretation. Besides, this Court is not
convinced that the Framers simply failed to adjust the aforesaid
constitutional provision, by sheer inadvertence, to their decision to shift
to a bicameral form of legislature. Even granting that there was,
indeed, such omission, this Court cannot supply the same. Following
the rule of casus omissus, that is, a case omitted is to be held as
intentionally omitted, this Court cannot under its power of interpretation
supply the omission even if the same may have resulted from
inadvertence or it was not foreseen or contemplated for to do so would
amount to judicial legislation. Ergo, this Court has neither power nor
authority to add another member in the JBC simply by judicial
construction.4
In light of these Decision and Resolution, both Houses of Congress
agreed on a six-month rotational representation in the JBC, wherein
the House of Representatives will represent Congress from January to
June and the Senate from July to December.5This is now the current
practice in the JBC. It is by reason of this arrangement that the votes
cast by the petitioner for the selection of nominees for the vacancies of
then retiring Supreme Court Associate Justices Jose P. Perez (Perez)
and Arturo Brion (Brion) were not counted by the JBC during its En
Banc deliberations held last December 2 and 9, 2016. Instead, the
petitioner's votes were simply placed in an envelope and sealed
subject to any further disposition as this Court may direct in a proper
proceeding.6 This is the root of the present controversy that prompted
the petitioner to file the instant Petition for Certiorari and Mandamus
based on the following grounds:
I.
THE WRIT OF CERTIORARI IS PROPER TO ENJOIN THE JBC TO
CORRECT ITS UNWARRANTED DENIAL OF THE VOTES
REGISTERED BY [HEREIN PETITIONER] DURING THE EN BANC
DELIBERATIONS ON DECEMBER 2 AND 9, 2016 BECAUSE THE
DECISION IN THE CHAVEZ CASE IS DEFECTIVE/FLA WED.
II.
THE WRIT OF MANDAMUS IS PROPER TO MANDATE THE JBC TO
ACCEPT/COUNT SAID VOTES CAST BY [PETITIONER] BECAUSE
THE RECONSTITUTION OF THE JBC IS DEFECTIVE/FLA WED AND
UNCONSTITUTIONAL.
III.
THE PRESENT PRACTICE OF THE JBC IN ALLOWING ONLY ONE
REPRESENTATIVE FROM THE SENATE OR THE HOUSE OF
[REPRESENTATIVES] TO PARTICIPATE AND VOTE ON A [6-
MONTH] ROTATION BASIS IS IMPRACTICABLE, ABSURD AND
UNCONSTITUTIONAL, CREATES AN [INSTITUTIONAL] IMBALANCE
BETWEEN THE TWO INDEPENDENT CHAMBERS OF CONGRESS,
AND INSTITUTES AN INHERENT AND CONTINUING
CONSTITUTIONAL DEFECT IN THE PROCEEDINGS OF THE JBC
THAT ADVERSELY AFFECTS APPOINTMENTS TO THE JUDICIAL
DEPARTMENT, INCLUDING AND PARTICULARLY [THIS COURT].
IV.
THE 1987 CONSTITUTION CLEARLY REQUIRES PARTICIPATION
AND VOTING BY REPRESENTATIVES FROM THE SENATE AND
THE HOUSE OF REPRESENTATIVES IN JBC PROCEEDINGS AND
ALL APPOINTMENTS TO THE JUDICIAL DEPARTMENT,
INCLUDING AND PARTICULARLY [TIDS COURT].
A. THE BICAMERAL NATURE OF THE LEGISLATIVE DEPARTMENT
WAS BELATEDLY DECIDED UNDER THE 1987 CONSTITUTION,
BUT MUST BE DEEMED AS INCORPORATED AND MODIFYING
THE JBC STRUCTURE UNDER SECTION 8(1)[,] ARTICLE VIII OF
THE [1987] CONSTITUTION, TO GIVE FULL MEANING TO THE
INTENT OF ITS FRAMERS.
B. THERE WAS A CLEAR OVERSIGHT AND TECHNICAL OMISSION
INVOLVING SECTIONS 8(1)[,] ARTICLE VIII OF THE [1987]
CONSTITUTION THAT SHOULD BE RECTIFIED BY [TIDS COURT].
C. THE FULL REPRESENTATION OF CONGRESS IN THE JBC IS
POSSIBLE ONLY WITH PARTICIPATING AND VOTING FROM
REPRESENTATIVES FROM THE TWO INDEPENDENT CHAMBERS,
OTHERWISE THE JBC PROCEEDINGS ARE UNCONSTITUTIONAL.
D. THE PRESENCE OF THE SENATE AND [THE] HOUSE OF
REPRESENTATIVES MEMBERS IN THE JBC UPHOLDS THE CO-
EQUAL REPRESENTATION IN THE COUNCIL OF THE THREE
MAIN BRANCHES OF GOVERNMENT.7
As instructed by this Court,8 both Houses of Congress, through the
Manifestation of the Office of the Solicitor General (OSG), which acts
as the People's Tribune in this case, and the JBC commented on the
Petition.
The OSG wants this Court to revisit Chavez for its alleged
unexecutability arising from constitutional constraints. It holds that the
current practice of alternate representation was only arrived at because
of time constraints and difficulty in securing the agreement of both
Houses of Congress.9 And, since the Constitution itself did not clearly
state who is the Congress' representative in the JBC, the provision,
therefore, regarding the latter's composition must be harmonized to
give effect to the current bicameral system.10 With this in view, the OSG
believes that it is only proper for both Houses of Congress to be given
equal representation in the JBC as neither House can bind the other
for there can be no single member of either House who can fully
represent the entire legislature for to do so would definitely result in
absurdity.11
Further, the OSG avers that Chavez's strict interpretation of Section
8(1), Article VIII of the 1987 Constitution violates the very essence of
bicameralism and sets aside the inherent dichotomy between the two
Houses of Congress.12 To note, a JBC member's votes are reflective of
the position and the interest such member wants to uphold, such that
when the representatives from each House of Congress vote for a
certain judicial nominee, they carry the interests and views of the group
they represent. Thus, when only one would represent both Houses of
Congress in the JBC, the vote would not be representative of the
interests embodied by the Congress as a whole.13
In the same way, the OSG contends that the bicameral nature of the
legislature strictly adheres to the distinct and separate personality of
both Houses of Congress; thus, no member of Congress can represent
the entire Congress. Besides, the phrase "a representative of the
Congress" in Section 8(1), Article VIII of the 1987 Constitution is
qualified by the phrase "ex officio members." The ex officio nature of
the position derives its authority from the principal office. It, thus,
follows that each house of Congress must be represented in the JBC.14
Also, the OSG states that the constitutional intent in creating the JBC is
to ensure community representation from the different sectors of
society, as well as from the three branches of government, and to
eliminate partisan politics in the selection of members of the judiciary.
The focus, therefore, is more on proper representation rather than
qualitative limitation. It even insists that when the Framers deliberated
on Section 8(1 ), Article VIII of the 1987 Constitution, they were still
thinking of a unicameral legislature, thereby, giving Congress only one
representative to the JBC. However, with the shift from unicameralism
to bicameralism, "a representative of the Congress" in the JBC should
now be understood to mean one representative from each House of
Congress. For had it been the intention of the Framers for the JBC to
be composed only of seven members, they would have specified the
numbers just like in the other constitutional provisions. As such, the
membership in the JBC should not be limited to seven members. More
so, an eventual deadlock in the voting would not pose any problem
since the voting in the JBC is not through a "yes" or a "no" vote.15
As its final argument, the OSG maintains that while Congress'
participation in the JBC may be non-legislative, still, the involvement of
both Houses of Congress in its every proceeding is indispensable, as
each House represents different constituencies and would necessarily
bring a unique perspective to the recommendation process of the
JBC.16
For its part, the JBC vehemently pleads that the present Petition be
dismissed as its adopted rotational scheme and the necessary
consequences thereof are not the proper subjects of a certiorari and
even a mandamus petition for the same do not involve an exercise of
judicial, quasi-judicial or ministerial functions. Apart from that, it
committed no grave abuse of discretion in refusing to recognize,
accept and count the petitioner's votes during its En Banc deliberations
last December 2 and 9, 2016 for it merely acted in accordance with the
Constitution and with the ruling in Chavez. More so, there is no
showing that the petitioner has no plain, speedy and adequate remedy
other than this Petition for nowhere herein did he assert that he exerted
all efforts to have his concern addressed by Congress, such as asking
the latter to repudiate the rotational arrangement. Thus, for the
petitioner's failure to exhaust all remedies available to him in Congress,
he deprived the latter of an opportunity to address the matter. Also, the
practice and acquiescence of both Houses of Congress to such an
arrangement operates as an estoppel against any member thereof to
deny its validity. As regards a writ of mandamus, it cannot be issued to
compel the JBC to count the petitioner's votes for it will not lie to control
the performance of a discretionary act.17
The JBC further enunciates that the petitioner has no locus standi to
institute this Petition in his capacity as Chairman of the House of
Representatives Committee on Justice and Ex Officio Member of the
JBC without the requisite resolution from both Houses of Congress
authorizing him to sue as a member thereof, which absence is a fatal
defect rendering this Petition dismissible.18
In the same vein, the JBC asseverates that this Petition should also be
dismissed as the allegations herein are mere rehash of the arguments
and dissents in Chavez, which have already been exhaustively litigated
and settled therein by this Court, more in particular, the interpretation
of Section 8(1), Article VIII of the 1987 Constitution, hence, barred by
the doctrine of stare decisis. Similarly, there exists no substantial
reason or even supervening event or material change of circumstances
that warrants Chavez's reversal.19
The JBC likewise insists that it was the intent of the Framers of the
Constitution for the JBC to have only seven members. The reason for
that was laid down in Chavez, that is, to provide a solution should there
be a stalemate in the voting. As to the alleged oversight and technical
omission of the Framers in changing the provision on the JBC to reflect
the bicameral nature of Congress, these are flimsy excuses to override
the clear provision of the Constitution and to disturb settled
jurisprudence. As explained in Chavez, Congress' membership in the
JBC was not in the interest of a certain constituency but in reverence to
it as a major branch of government.20
Last of all, the JBC holds that should this Petition be granted, there
would be an imbalance in favor of Congress with respect to the
representation in the JBC of the three main and co-equal branches of
the government. For the unmistakable tenor of Section 8(1), Article VIII
of the 1987 Constitution was to treat each ex officio member as
representing one co-equal branch of government. And, even assuming
that the current six-month rotational scheme in the JBC created an
imbalance between the two Houses of Congress, it is not within the
power of this Court or the JBC to remedy such imbalance. For the
remedy lies in the amendment of this constitutional provision.21
Given the foregoing arguments, the issues ought to be addressed by
this Court can be summed up into: (1) whether the petitioner has locus
standi to file this Petition even without the requisite resolution from both
Houses of Congress permitting him to do so; (2) whether the
petitioner's direct resort to this Court via a Petition for Certiorari and
Mandamus is the plain, speedy and adequate remedy available to him
to assail the JBC's adoption of the rotational representation leading to
the non-counting of his votes in its En Banc deliberations last
December 2 and 9, 2016; (3) whether the JBC acted with grave abuse
of discretion in adopting the six-month rotational scheme of both
Houses of Congress resulting in the non-counting of the petitioner's
votes in its En Banc deliberations last December 2 and 9, 2016; (4)
whether the JBC can be compelled through mandamus to count the
petitioner's votes in its En Banc deliberations last December 2 and 9,
2016; and (4) whether this Court's ruling in Chavez applies as stare
decisis to the present case.
Before delving into the above-stated issues, this Court would like to
note that this Petition was primarily filed because of the non-counting
of the petitioner's votes in the JBC En Banc deliberations last
December 2 and 9, 2016 held for the purpose of determining, among
others, who will be the possible successors of the then retiring
Associate Justices of the Supreme Court Perez and Brion, whose
retirements were set on December 14 and 29, 2016, respectively. The
list of nominees will then be forwarded to the President as the
appointing authority. With the appointments of Associate Justices
Samuel R. Martires (Martires) and Noel G. Tijam (Tijam) on March 2
and 8, 2017, respectively, this Petition has now been rendered moot
insofar as the petitioner's prayers to (1) reverse and set aside the JBC
En Banc deliberations last December 2 and 9, 2016; and (2) direct the
JBC to count his votes therein as its ex officio member,22 are
concerned.
As a rule, courts do not entertain moot questions. An issue becomes
moot and academic when it ceases to present a justiciable controversy
so that a declaration on the issue would be of no practical use or value.
This notwithstanding, the Court in a number of cases held that the
moot and academic principle is not a magical formula that can
automatically dissuade the courts from resolving a case. Courts will still
decide cases otherwise, moot and academic if: (1) there is a grave
violation of the Constitution; (2) the exceptional character of the
situation and the paramount public interest is involved; (3) when 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.23Considering that all the arguments
herein once again boil down to the proper interpretation of Section
8(1), Article VIII of the 1987 Constitution on congressional
representation in the JBC, this Court deems it proper to proceed on
deciding this Petition despite its mootness to settle the matter once and
for all.
Having said that, this Court shall now resolve the issues in seriatim.
On petitioner's locus standi. The petitioner brings this suit in his
capacity as the current Chairman of the House of Representatives
Committee on Justice and Ex Officio Member of the JBC. His legal
standing was challenged by the JBC for lack of an enabling resolution
for that purpose coming from both Houses of Congress.
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. 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.24 With that definition, therefore, a party will be
allowed to litigate only when he can demonstrate that (1) he has
personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be
redressed by the remedy being sought.25Otherwise, he/she would not
be allowed to litigate. Nonetheless, in a long line of cases, concerned
citizens, taxpayers and legislators when specific requirements have
been met have been given standing by this Court. This was succinctly
explained in Francisco, Jr. v. The House of Representatives, thus:
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be
able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained
of. In fine, when the proceeding involves the assertion of a public right,
the mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim
that public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.
Before he can invoke the power of judicial review, however, he must
specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he would sustain a
direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest
common to all members of the public.
xxxx
As for a legislator, he is allowed to sue to question the validity of any
official action which he claims infringes his prerogatives as a legislator.
Indeed, a member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by
the Constitution in his office.26 (Emphasis and underscoring supplied.)
The legal standing of each member of Congress was also upheld
in Philippine Constitution Association v. Enriquez,27 where this Court
pronounced that:
The legal standing of the Senate, as an institution, was recognized
in Gonzales v. Macaraig, Jr. (citation omitted). In said case, 23
Senators, comprising the entire membership of the Upper House of
Congress, filed a petition to nullify the presidential veto of Section 55 of
the GAA of 1989. The filing of the suit was authorized by Senate
Resolution No. 381, adopted on February 2, 1989, and which reads as
follows:
Authorizing and Directing the Committee on Finance to Bring in the
Name of the Senate of the Philippines the Proper Suit with the
Supreme Court of the Philippines contesting the Constitutionality of the
Veto by the President of Special and General Provisions, particularly
Section 55, of the General Appropriation Bill of 1989 (H.B. No. 19186)
and For Other Purposes.
In the United States, the legal standing of a House of Congress to sue
has been recognized (citation omitted).
While the petition in G.R. No. 113174 was filed by 16 Senators,
including the Senate President and the Chairman of the Committee on
Finance, the suit was not authorized by the Senate itself. Likewise, the
petitions in G.R. Nos. 113766 and 113888 were filed without an
enabling resolution for the purpose.
Therefore, the question of the legal standing of petitioners in the three
cases becomes a preliminary issue before this Court can inquire into
the validity of the presidential veto and the conditions for the
implementation of some items in the GAA of 1994.
We rule that a member of the Senate, and of the House of
Representatives for that matter, has the legal standing to question the
validity of a presidential veto or a condition imposed on an item in an
appropriation bill.
Where the veto is claimed to have been made without or in excess of
the authority vested on the President by the Constitution, the issue of
an impermissible intrusion of the Executive into the domain of the
Legislature arises (citation omitted).
To the extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution (citation omitted).
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress (citation omitted). In such a
case, any member of Congress can have a resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a whole or individual
Senators as such having a substantial interest in the question at issue.
It could likewise be said that there was the requisite injury to their rights
as Senators. It would then be futile to raise any locus standi issue. Any
intrusion into the domain appertaining to the Senate is to be resisted.
Similarly, if the situation were reversed, and it is the Executive Branch
that could allege a transgression, its officials could likewise file the
corresponding action. What cannot be denied is that a Senator has
standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office (citation omitted).28 (Emphases
and underscoring supplied.)
It is clear therefrom that each member of Congress has a legal
standing to sue even without an enabling resolution for that purpose so
long as the questioned acts invade the powers, prerogatives and
privileges of Congress. Otherwise stated, whenever the acts affect the
powers, prerogatives and privileges of Congress, anyone of its
members may validly bring an action to challenge the same to
safeguard and maintain the sanctity thereof.
With the foregoing, this Court sustains the petitioner's legal standing as
Member of the House of Representatives and as the Chairman of its
Committee on Justice to assail the alternate representation of
Congress in the JBC, which arrangement led to the non-counting of his
votes in its En Banc deliberations last December 2 and 9, 2016, as it
allegedly affects adversely Congress' prerogative to be fully
represented before the said body.
On petitioner's direct resort to this Court via certiorari petition. The JBC
questions the propriety of the petitioner's direct resort to this Court via
the present Petition to assail its adoption of the rotational
representation of Congress resulting in the non-counting of his votes in
its En Banc deliberations last December 2 and 9, 2016. The JBC
insists that the said scheme was a creation of Congress itself; as such,
the petitioner's plain, speedy and adequate remedy is to appeal to
Congress to repudiate the same. Direct resort to this Court should not
be allowed if there is a remedy available to the petitioner before
Congress.
Generally, the writ of certiorari can only be availed of in the absence of
an appeal or any plain, speedy and adequate remedy in the ordinary
course of law. In Bordomeo v. Court of Appeals, however, this Court
clarified that it is inadequacy that must usually determine the propriety
of certiorari and not the mere absence of all other remedies and the
danger of failure of justice without the writ. A remedy is considered
plain, speedy and adequate if it will promptly relieve the petitioner from
the injurious effects of the judgment, order, or resolution of the lower
court or agency.29
In the same way, as a matter of policy, direct resort to this Court will
not be entertained unless the redress desired cannot be obtained in
the appropriate lower courts, and exceptional and compelling
circumstances, such as in cases involving national interest and those
of serious implications, justify the availment of the extraordinary
remedy of the writ of certiorari, calling for the exercise of its primary
jurisdiction.30 In The Diocese of Bacolod v. Commission on
Elections,31 and again in Maza v. Turla,32this Court took pains in
enumerating the circumstances that would warrant a direct resort to
this Court, to wit: (1) when there are genuine issues of constitutionality
that must be addressed at the most immediate time; (2) when the
issues involved are of transcendental importance; (3) cases of first
impression as no jurisprudence yet exists that will guide the lower
courts on this matter; (4) the constitutional issues raised are better
decided by this court; (5) the time element presented in this case
cannot be ignored; (6) the filed petition reviews the act of a
constitutional organ; (7) petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary course of law; and
(8) the petition includes questions that are dictated by public welfare
and the advancement of public policy, or demanded by the broader
interest of justice, or the orders complained of were found to be patent
nullities, or the appeal was considered as clearly an inappropriate
remedy.33
Here, while this Court agrees with the JBC that the petitioner's
preliminary remedy to question the rotational arrangement of Congress
is to ask the latter to repudiate the same, this, however, cannot be
considered plain, speedy and adequate. This Court is, thus, inclined to
sustain the petitioner's direct resort to this Court not only because it is
the plain, speedy and adequate remedy available to him but also by
reason of the constitutional issues involved herein and the urgency of
the matter. As correctly pointed out by the OSG, the Constitution
mandates that any vacancy to the office of an Associate Justice of the
Supreme Court must be filled up within the 90-day period from its
occurrence. Therefore, the JBC must submit the list of nominees prior
to the start of that period. As the nominations covered by the
questioned December 2016 JBC En Banc deliberations were intended
for vacancies created by then Associate Justices Perez and Brion, who
respectively retired last December 14 and 29, 2016, hence, any resort
to Congress during that time would already be inadequate since the
JBC list of nominees would be submitted any moment to the Office of
the President for the appointment of the next Associate Justices of the
Supreme Court. Since time is of the essence, the petitioner's direct
resort to this Court is warranted.
On the alleged grave abuse of discretion of the JBC in adopting the
rotational representation of Congress correctible by certiorari. The
petitioner ascribed grave abuse of discretion on the part of the JBC in
its adoption of the rotational scheme, which led to the non-counting of
his votes in its En Banc deliberations last December 2 and 9, 2016, as
it deprives Congress of its full representation therein. The JBC, on the
other hand, believes otherwise for it merely acted in accordance with
the mandate of the Constitution and with the ruling in Chavez. Also,
such rotational scheme was a creation of Congress, which it merely
adopted.
Certiorari and Prohibition under Rule 65 of the present Rules of Court
are the two special civil actions used for determining and correcting
grave abuse of discretion amounting to lack or excess of jurisdiction.
The sole office of the writ of certiorari is the correction of errors of
jurisdiction, which necessarily includes the commission of grave abuse
of discretion amounting to lack of jurisdiction.34 The burden is on the
petitioner to prove that the respondent tribunal committed not merely a
reversible error but also a grave abuse of discretion amounting to lack
or excess of jurisdiction. Showing mere abuse of discretion is not
enough, for the abuse must be shown to be grave. Grave abuse of
discretion means either that the judicial or quasi-judicial power was
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, or that the respondent judge, tribunal or board
evaded a positive duty, or virtually refused to perform the duty enjoined
or to act in contemplation of law, such as when such judge, tribunal or
board exercising judicial or quasi-judicial powers acted in a capricious
or whimsical manner as to be equivalent to lack of jurisdiction.35
But, the remedies of certiorari and prohibition are necessarily broader
in scope and reach before this Court as the writs may be issued to
correct errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of
grave abuse of discretion amounting to lack or excess of jurisdiction by
any branch or instrumentality of the Government, even if the latter does
not exercise judicial, quasi-judicial or ministerial functions. Thus, they
are appropriate remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and executive officials.36
Here, it is beyond question that the JBC does not fall within the scope
of a tribunal, board, or officer exercising judicial or quasi-judicial
functions. Neither did it act in any judicial or quasi-judicial capacity nor
1âwphi 1
did it assume any performance of judicial or quasi-judicial prerogative
in adopting the rotational scheme of Congress, which was the reason
for not counting the votes of the petitioner in its En Banc deliberations
last December 2 and 9, 2016. But, despite this, its act is still not
beyond this Court's reach as the same is correctible by certiorari if it is
tainted with grave abuse of discretion even if it is not exercising judicial
and quasi-judicial functions. Now, did the JBC abuse its discretion in
adopting the six-month rotational arrangement and in not counting the
votes of the petitioner? This Court answers in the negative. As
correctly pointed out by the JBC, in adopting the said arrangement, it
merely acted pursuant to the Constitution and the Chavez ruling, which
both require only one representative from Congress in the JBC. It
cannot, therefore, be faulted for simply complying with the Constitution
and jurisprudence. Moreover, said arrangement was crafted by both
Houses of Congress and the JBC merely adopted the same. By no
stretch of imagination can it be regarded as grave abuse of discretion
on the part of the JBC.
With the foregoing, despite this Court's previous declaration
that certiorari is the plain, speedy and adequate remedy available to
petitioner, still the same cannot prosper for the petitioner's failure to
prove that the JBC acted with grave abuse of discretion in adopting the
rotational scheme.
On the propriety of mandamus. It is essential to the issuance of a writ
of mandamus that the applicant has a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to
perform the act required. The burden is on the petitioner to show that
there is such a clear legal right to the performance of the act, and a
corresponding compelling duty on the part of the respondent to perform
the act. As an extraordinary writ, it lies only to compel an officer to
perform a ministerial duty, not a discretionary one.37 A clear line
demarcates a discretionary act from a ministerial one. A purely
ministerial act is one which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of
legal authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done.38 On the other hand, if
the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the
discharge of the same requires neither the exercise of official discretion
or judgment.39 Clearly, the use of discretion and the performance of a
ministerial act are mutually exclusive. Further, the writ of mandamus
does not issue to control or review the exercise of discretion or to
compel a course of conduct.40
In the case at bench, the counting of votes in the selection of the
nominees to the judiciary may only be considered a ministerial duty of
the JBC if such votes were cast by its rightful members and not by
someone, like the petitioner, who is not considered a member during
the En Banc deliberations last December 2 and 9, 2016. For during the
questioned period, the lawful representative of Congress to the JBC is
a member of the Senate and not of the House of Representatives as
per their agreed rotational scheme. Considering that a member of the
Senate already cast his vote therein, the JBC has the full discretion not
to count the votes of the petitioner for it is mandated by both the
Constitution and jurisprudence to maintain that Congress will only have
one representative in the JBC. As the act of the JBC involves a
discretionary one, accordingly, mandamus will not lie.
On the application of Chavez as stare decisis in this case. The
petitioner strongly maintains that Chavez must be revisited and
reversed due to its unexecutability. But the JBC insists that the
arguments herein are mere rehash of those in Chavez, hence, already
barred by the doctrine of stare decisis. Also, there is no cogent reason
for Chavez's reversal.
This Court takes another glance at the arguments in Chavez and
compares them with the present arguments of the petitioner. A careful
perusal, however, reveals that, although the petitioner questioned the
JBC's adoption of the six-month rotational representation of Congress
leading to the non-counting of his votes in its En Banc deliberations
last December 2 and 9, 2016, the supporting arguments hereof still boil
down to the proper interpretation of Section 8(1), Article VIII of the
1987 Constitution. Hence, being mere rehash of the arguments
in Chavez, the application of the doctrine of stare decisis in this case is
inevitable. More so, the petitioner failed to present strong and
compelling reason not to rule this case in the same way that this Court
ruled Chavez.
As stated in the beginning of this ponencia, stare decisis et non quieta
movere is a doctrine which means to adhere to precedents and not to
unsettle things which are established. This is embodied in Article 8 of
the Civil Code of the Philippines which provides, thus:
ART. 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.
The doctrine enjoins adherence to judicial precedents and requires
courts in a country to follow the rule established in a decision of the
Supreme Court thereof. That decision becomes a judicial precedent to
be followed in subsequent cases by all courts in the land. The doctrine
is based on the principle that once a question of law bas been
examined and decided, it should be deemed settled and closed to
further argument. The same is grounded on the necessity for securing
certainty and stability of judicial decisions, thus, time and again, the
court has held that it is a very desirable and necessary judicial practice
that when a court bas laid down a principle of law as applicable to a
certain state of facts, it will adhere to that principle and apply it to all
future cases in which the facts are substantially the same. It simply
means that for the sake of certainty, a conclusion reached in one case
should be applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds from the
first principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus, where the
same questions relating to the same event have been put forward by
the parties similarly situated as in a previous case litigated and decided
by a competent court, the rule of stare decisis is a bar to any attempt to
relitigate the same issue. The doctrine has assumed such value in our
judicial system that the Court has ruled that " [a]bandonment thereof
must be based only on strong and compelling reasons, otherwise, the
becoming virtue of predictability which is expected from this Court
would be immeasurably affected and the public's confidence in the
stability of the solemn pronouncements diminished." Verily, only upon
showing that circumstances attendant in a particular case override the
great benefits derived by our judicial system from the doctrine of stare
decisis, can the courts be justified in setting aside the same.41
Here, the facts are exactly the same as in Chavez, where this Court
has already settled the issue of interpretation of Section 8(1), Article
VIII of the 1987 Constitution. Truly, such ruling may not be unanimous,
but it is undoubtedly a reflection of the wisdom of the majority of
members of this Court on that matter. Chavez cannot simply be
regarded as an erroneous application of the questioned constitutional
provision for it merely applies the clear mandate of the law, that is,
Congress is entitled to only one representative in the JBC in the same
way that its co-equal branches are.
As this Court declared in Chavez, Section 8(1), Article VIII of the 1987
Constitution is clear, categorical and unambiguous. Thus, it needs no
further construction or interpretation. Time and time again, it has been
repeatedly declared by this Court that where the law speaks in clear
and categorical language, there is no room for interpretation, only
application.42 The wordings of Section 8(1), Article VIII of the 1987
Constitution are to be considered as indicative of the final intent of its
Framers, that is, for Congress as a whole to only have one
representative to sit in the JBC. This Court, therefore, cannot simply
make an assumption that the Framers merely by oversight failed to
take into account the bicameral nature of Congress in drafting the
same. As further laid down in Chavez, the Framers were not keen on
adjusting the provision on congressional representation in the JBC as it
was not in the exercise of its primary function, which is to legislate.
Notably, the JBC was created to support the executive power to
appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function. No parallelism can be drawn
between the representative of Congress in the JBC and the exercise
by Congress of its legislative powers under Article VI and constituent
powers under Article XVII of the Constitution. Congress, in relation to
the executive and judicial branches of government, is constitutionally
treated as another co-equal branch in the matter of its JBC
representation.43
This Court cannot succumb to the argument that Congress, being
composed of two distinct and separate chambers, cannot represent
each other in the JBC. Again, as this Court explained in Chavez, such
an argument is misplaced because in the JBC, any member of
Congress, whether from the Senate or the House of Representatives,
is constitutionally empowered to represent the entire Congress. It may
be a constricted constitutional authority, but it is not an absurdity. To
broaden the scope of congressional representation in the JBC is
tantamount to the inclusion of a subject matter which was not included
in the provision as enacted. True to its constitutional mandate, the
Court cannot craft and tailor constitutional provisions in order to
accommodate all situations no matter how ideal or reasonable the
proposed solution may sound. To the exercise of this intrusion, the
Court declines.44
While it is true that Section 8(1), Article VIII of the 1987 Constitution did
not explicitly state that the JBC shall be composed of seven members,
however, the same is implied in the enumeration of who will be the
members thereof. And though it is unnecessary for the JBC
composition to be an odd number as no tie-breaker is needed in the
preparation of a shortlist since judicial nominees are not decided by a
"yes" or "no" vote, still, JBC's membership cannot be increased from
seven to eight for it will be a clear violation of the aforesaid
constitutional provision. To add another member in the JBC or to
increase the representative of Congress to the JBC, the remedy is not
judicial but constitutional amendment.

In sum, this Court will not overthrow Chavez for it is in accord with the
constitutional mandate of giving Congress "a representative" in the
JBC. In the same manner, the adoption of the rotational scheme will
not in any way deprive Congress of its full participation in the JBC for
such an arrangement is also in line with that constitutional mandate.

WHEREFORE, premises considered, the instant Petition

for Certiorari and Mandamus is hereby DISMISSED for lack of merit.

SO ORDERED.

G.R. No. 212686, September 28, 2015

SERGIO R. OSMENA III, Petitioner, v. POWER SECTOR ASSETS AND

LIABILITIES MANAGEMENT CORPORATION, EMMANUEL R. LEDESMA,
JR., SPC POWER CORPORATION AND THERMA POWER VISAYAS,
INC., Respondents.

DECISION

VILLARAMA, JR., J.:

In a direct recourse to this Court, Senator Sergio R. Osmeña III (petitioner)

seeks to enjoin the sale of the Naga Power Plant Complex (NPPC) to
respondent SPC Power Corporation (SPC) resulting from the latter's exercise
of the right to top the winning bid of respondent Therma Power Visayas, Inc.
(TPVI), and to declare such stipulation in the Lease Agreement as void for
being contrary to public policy.

Antecedents

Respondent Power Sector Assets and Liabilities Management Corporation

(PSALM) is a government-owned and controlled corporation created by
virtue of Republic Act (R.A.) No. 9136, otherwise known as the Electric
Power Industry Reform Act (EPIRA) of 2001. Its principal purpose is to
manage the orderly sale, disposition, and privatization of the National Power
Corporation's (NPC's) generation assets, real estate and other disposable
assets, and Independent Power Producer (IPP) contracts, with the objective
of liquidating all NPC financial obligations and stranded contract costs in an
optimal manner.1 Respondent Emmanuel R. Ledesma, Jr. (Ledesma) is the
incumbent President and Chief Executive Officer of PSALM.
SPC is a joint venture corporation between Salcon Power Corporation and
Korea Power Corporation (Kepco).2 TPVI is a subsidiary of AboitizPower, the
power generation company of the Aboitiz Group.
premises.
On December 27, 2013, the Board of Directors of PSALM approved the
commencement of the 3rd Round of Bidding for the sale of the 153.1-MW
NPPC. Only SPC and TPVI submitted bids. On March 31, 2014, TPVI was
declared as the highest bidder. Consequently, a Notice of Award6 was issued
to TPVI on April 30, 2014, subject to SPC's right under Section 3.02 of the
LBGT-LLA, as previously stated in Section 1B-20 of the Bidding Procedures.

PSALM provided the following brief description of the two (2) facilities
subject of the present controversy:

Facility Naga Power Plant Complex Land-Based Gas

Name (NPPCx) Turbine (LBGT)
Location Brgy. Colon, Naga,Cebu Brgy. Colon, Naga,
Cebu
Power a. 52.5 MW Cebu 1 coal-fired 55-MW Naga LBGT
Plants thermal power plant; Power Plant The results of the NPPC bidding are as follows:
Installed
b. 56.8 MW Cebu 2 coal-fired TPVI SPC
thermal power plants; and
a. Purchase Price 441,191,500.00 211,391,388.88
c. 43.8 MW Cebu Diesel Power b. Rentals 588,735,000.00 588,735,000.00
Plant 1 composed of six (6)7.3 MW
c. Option Price 58,873,500.00 58,873,500.00
bunker-C fed power units
Financial Bid, PHP 1,088,800,000.00 858,999,888.887
Total 153.10 MW 55.00 MW
Rated
In a letter dated April 29, 2014, PSALM notified SPC of TPVI's winning bid
Capacity which covers the purchase of the NPPC and lease of the land. It also advised
Land 209,000.00 [sq. m.] 5,504.02 [sq. m.]3 SPC that under the terms of LBGT-LLA (Sections 2.01 and 3.02), the lease of
the land (as governed by the LBGT-LLA) will likewise expire on January 29,
Area
2020.8 In a letter-reply dated May 7, 2014, SPC confirmed that it is
exercising the right to top the winning bid of TPVI and will pay the amount
The Naga Land-Based Gas Turbine (LBGT) is located inside the same of Php1,143,240,000.00 on the understanding that the term of the lease is
compound as the NPPC.4 25 years from Closing Date. SPC argued that -

On October 16, 2009, PSALM privatized the 55-MW Naga Power Plant (LBGT)
by way of negotiated sale after a failed bidding in accordance with the LBGT
Bidding Procedures.5 The land underlying the LBGT was also leased out for a
period of 10 years. This bidding resulted in SPC's acquisition of the LBGT
through an Asset Purchase Agreement (LBGT-APA) and lease of the land
under a Land Lease Agreement (LBGT-LLA). The LBGT-LLA would expire on
January 29, 2020. The LBGT-LLA contained a provision for SPC's right to top
in the event of lease or sale of property which is not part of the leased
As SPC also participated in the bidding, the bid for the lease component
clearly computed on the basis of, and was for twenty-five (25) years.
However, by now stating in your letter that the "lease has a Term often (10)
years and will expire on 29 January 2020," SPC would effectively have less
than six (6) years from today to use the property, which is extremely short
for the lease component computed and based on the twenty-five (25) year
term that was offered during the bidding. While we are aware that the
second paragraph of Section 3.02 of the LLA-LBGT provides that the
property covered by the right to top will be "governed" by the LLA-LBGT, we
are of the reasonable belief that this does not include "Term" under Section
2.01 thereof considering that the "Draft Land Lease Agreement for the
153.1-MW Naga Power Plant," which formed part of the bid
documents, specifically provided for a "Term" of twenty-five (25)
years.9
PSALM then wrote the Office of the Government Corporate Counsel (OGCC)
requesting for legal opinion or confirmation of its position that the term of
the lease of the NPPC upon SPC's exercise of its right to top would be for the
remaining period of the lease of the land of the Naga LBGT Power Plant,
which will expire in 2020.10
On May 21, 2014, the OGCC rendered Opinion No. 098, Series of 2014 which
upheld PSALM's position that SPC may exercise the right to top under the
LBGT-LLA provisions, the source of such right. It explained that the NPPC-
LLA is a separate and distinct transaction which is inapplicable with respect
to SPC's right to top.11
However, upon re-evaluation of the arguments in the position papers
submitted by SPC and PSALM, the OGCC submitted its study and
recommendation to Secretary of Justice Leila M. De Lima. The study
concluded that the right to top exercised by SPC in the NPPC bidding is a
right to top on a sale, which must then be separately governed by the NPPC-
APA, and implemented in accordance with the NPPC-APA and LLA
provisions.12
On June 16, 2014, the present petition was filed in this Court praying that
(1) a temporary restraining order (TRO) be issued ex parte, and after
hearing the parties, a writ of preliminary injunction be issued enjoining
PSALM from implementing SPC's exercise of its right to top in connection
with the NPPC bidding; (2) SPC's right to top as provided in Section 3.02 of
the LBGT-LLA be declared void; and (3) a permanent injunction be issued
enjoining respondents Ledesma and PSALM from committing any act in
furtherance of SPC's exercise of the right to top.13
SPC, TPVI and PSALM filed their respective Comments on the petition, while
SPC filed a Reply to TPVI's Comment and petitioner his Reply to PSALM's
Comment.
On August 7, 2014, SPC filed a Manifestation with Motion informing this
Court that on July 28, 2014, PSALM advised that PSALM's Board of Directors
has already declared SPC as the winning bidder for the privatization of NPPC.
It thus contended that with this development, the present petition had
become moot.14
On August 11, 2014, petitioner filed a Supplemental Petition with Motion for
Early Resolution of the Application for Temporary Restraining Order and/or
Writ of Preliminary Injunction.15 According to petitioner, the transfer and
possession to SPC of the NPPC and of the land on which it is built should be
deferred until after this Court has ruled on his petition due to the following
reasons: (1) there seems to be no urgency for PSALM to rush the award of
the NPPC; (2) by the execution of the subject NPPC-APA and LLA in favor of
SPC, PSALM has invalidly awarded a government property without the
requisite public bidding; and (3) there are practical difficulties and expense
that will be incurred in order to reverse acts that are committed before any
provisional or preventive relief is issued, such as transfer of ownership
and/or possession of the properties in SPC's name or to third parties, and
potential liability of the Government under suit for damages to be filed by
any interested party.
On November 11, 2014, PSALM filed a Manifestation in Lieu of Comment to
the Supplemental Petition,16stating that: (1) PSALM's Board of Directors, in a
meeting held on July 25, 2014, taking into consideration the OGCC's letter
dated June 13, 2014 and the DOJ's opinion-letter dated June 23, 2014,
declared SPC as the winning bidder for the sale of 153.1-MW NPPC; (2)
PSALM issued on July 28, 2014 the Notice of Award and Certificate of
Effectivity in favor of SPC; (3) the NPPC-APA and LLA were already signed
and delivered to SPC; and (4) PSALM turned over the properties to SPC last
September 25, 2014.
Petitioner's Arguments
Petitioner asserts that the right to top provision in the LBGT-LLA is an option
contract which must be supported by a consideration separate from the
lease contract and may be withdrawn at any time by PSALM in the absence
of such consideration. He submits that SPC's preferential right to buy or
lease "any property in the vicinity of the Leased Premises which is not part
of the Leased Premises" was a gratuitous concession to SPC, and most likely
was part of a scheme to bar any competition to SPC and to restrict the
production of energy. Citing Power Sector Assets and Liabilities Management
Corporation v. Pozzolanic Philippines Incorporated,17 petitioner argues that
the right of first refusal is upheld only in cases where the holder of such
right holds an existing, or at least, a vested interest in the object for which
the right is to be exercised. Thus, even if SPC has a legal interest in the
vicinity lots, its right to top can no longer be exercised because it is not
operating the Naga LBGT itself.
Another legal ground for the nullity of the option raised by petitioner
pertains to the policy requiring competitive public bidding in all government
contracts. Petitioner contends that by granting SPC the right to top, PSALM
violated the express provisions of R.A. No. 9136 (EPIRA Law) and R.A. No.
9184 (Procurement Law) on public bidding by failing to maintain bidders on
equal footing in order to give the government the best possible and available
offer for public assets being sold or leased. He posits that SPC's exercise of
its right to top is disadvantageous to the Government and that the provision
enables SPC to skirt around eligibility requirements for a qualified bidder.
Alleging an anomalous track record for SPC since 1994 when as then Salcon
Power Corporation it entered into a 15-year contract to "Rehabilitate,
Operate, Maintain and Manage" a coal plant, petitioner argues that the 2009
Naga LBGT contract should have been terminated for SPC's failure to comply
with its obligations. Under the 2009 Naga LBGT, not only does SPC enjoy an
invalid option or preferential right unsupported by any consideration, such
right to top is also without a determinate object and founded on illegal cause
considering that it was merely intended to maintain SPC's dominance and to
assist SPC in restricting competition.
Respondents' Arguments
At the outset, SPC questions petitioner's legal standing to file the present
petition, having failed to establish any personal benefit in the event relief is
granted, and there being no expenditure of public funds involved that would
impress upon the petition the character of a taxpayer's suit. Neither could
petitioner invoke his office as a Senator because legislators may only be
accorded standing to sue if there is a claim that official action complained of
infringes upon their prerogative as legislators. Petitioner could also not have
anchored his standing upon his status as a citizen as he failed to
demonstrate how he would suffer personal injury as a result of respondents'
acts and erroneously invoked this Court's jurisdiction to rule on a policy
issue relating to the manner PSALM carries out its mandate, even as he
failed to cite specific provision in the law and in EPIRA which was supposedly
violated by the petitioner.
On procedural grounds, SPC seeks the dismissal of the petition as there is no
basis for annulling PSALM's acts by way of a petition for certiorari or
prohibition, and said petition was not filed within the 60-day reglementary
period from the time the Naga LBGT contract incorporating the right to top
was awarded to SPC in 2009 and the issuance of DOJ opinion dated January
9, 2013 wherein SPC's right to top was held to be valid and not disallowed
by law.
SPC asserts that even on substantive grounds, the petition should still be
dismissed as the right to top is clearly not an option contract and the Naga
LBGT was validly awarded to SPC through a public bidding. Citing JG Summit
Holdings, Inc. v. Court of Appeals.,18 SPC maintains that the right to top
granted under the LBGT-LLA and exercised by it did not violate the rules of
competitive bidding. The implementation of such right to top, moreover,
does not place the Government in a disadvantaged position but rather
assures the Government of an additional 5% of the highest reasonable bid.
SPC thus argues that the right to top provision in the LBGT-LLA is consistent
with public policy and there is no law that invalidates such provision, such
that SPC's vested right should not be disregarded.
On its part, PSALM notes that similar right to top provisions are found in
several other land lease agreements in its privatization undertakings. In the
2013 Bidding Procedures for the 3rd Round of Bidding for the NPPC, PSALM
duly disclosed to the potential bidders the right to top provision under the
LBGT-LLA (Sections 1B-05 and 1B-20 and Form of Certificate Closing for
Seller). PSALM avers that it simply complied with the opinions rendered by
the DOJ and the second opinion of the OGCC, which have been held
persuasive and hence it acted in good faith in subsequently allowing SPC to
exercise its right to top the winning bid for the purchase of NPPC and lease
of the land.
TPVI concurs with the allegations in the petition which it said are sufficient to
vest standing upon petitioner as citizen, taxpayer, Senator and Chairman of
the Joint Congressional Power Committee (Committee). It likewise finds the
petition for certiorari as the proper remedy in view of the grave abuse of
discretion committed by PSALM in determining the terms of reference of the
public bidding to be conducted, as well as in determining the qualifications of
the bidders. As to the timeliness of the petition, TPVI points out that SPC
exercised its right to top only on May 29, 2014 and therefore the 60-day
period within which to file a petition for certiorari under Rule 65 started only
from that date.
Citing LTFRB v. Stronghold Insurance Company, Inc.,19 TPVI argues that the
right of first refusal and right to top provisions contravene the public policy
on competitive public bidding and are valid only in specific cases. In this
case, SPC owns a power generation asset (LBGT) and has interest only over
the land on which the LBGT is located. TPVI underscores that the right to top
in the LBGT does not stand in the same footing as the right to top granted
under the other Land Lease Agreements entered into by PSALM, considering
the nature of the gas turbine facility it owns. TPVI further contends that
aside from SPC's continuous breach of its obligation to operate the Naga
LBGT, the right to top provision in the LBGT-LLA provides SPC with the
ability to prevent any entity from successfully bidding for and ultimately
owning the LBGT and leasing the land. Hence, the Government does not
stand to benefit from the right to top provision in the LBGT-LLA.
Assuming the right to top is valid, still TPVI maintains that SPC failed to
timely exercise the same within the period provided therefor, or until May
30, 2014. Moreover, SPC's letter dated May 7, 2014 and subsequent deposit
in PSALM's account of the amount to cover the right to top is not the
exercise sanctioned under the LBGT-LLA, and SPC's insistence on a 25-year
term instead of the remaining term of the LBGT-LLA is an erroneous and
invalid exercise of such right to top.
Replying to TPVI's arguments, SPC contends that the right to top is valid and
its validity was upheld by the DOJ in its Opinion dated January 9, 2013.
Contrary to the averment that the right to top was a gratuitous concession,
SPC clarified that it participated and won in the bidding conducted for the
sale of LBGT and lease of the land which included the right to top provision,
of which TPVI was well aware. During the bidding for the NPPC, all bidders
were given an equal chance of winning and none of them challenged SPC's
right to top which was duly disclosed to them. SPC further asserts that the
right to top is more advantageous to the Government considering that the
bidders tend to offer only competitive bids knowing that their bids can be
"topped out" by SPC, and hence the Government is assured of receiving an
offer even better than the best bid tendered during the bidding proper.
As to the alleged lack of interest over the object of the right to top, SPC
points out that it was the bidders' concern that the buyer of the power plant
obtain reasonable access to properties or lands in close proximity to the
power plant for purposes of security, right of way or other operational
requirements. SPC further avers that it has timely exercised the right to top
as can be gleaned from its May 20, 2014 letter informing PSALM that SPC
already wired to PSALM the winning bid of Php 1,143,240,000.00, which is
equivalent to the amount tendered by the winning bidder plus 5%.
Issues
From the foregoing, the issues may be summarized as follows: (1)
Is certiorari the proper remedy and was it timely filed?; (2) Does petitioner
possess legal standing to institute the present action questioning the validity
of SPC's right to top?; (3) Do right to top provisions in the land lease
agreements entered into by PSALM contravene public policy on competitive
bidding?; and (4) Did PSALM gravely abuse its discretion in allowing SPC's
exercise of the right to top under the LBGT-LLA?
Our Ruling
The petition is meritorious.
Propriety of Certiorari
The Constitution under Section 1, Article VIII expressly directs the Judiciary,
as a matter of power and duty, not only to settle actual controversies
involving rights which are legally demandable and enforceable but, 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. We thus have the duty to take
cognizance of allegations of grave abuse of discretion in this
case,20 involving the sale by PSALM of a power plant, which supposedly
contravenes the policy on competitive public bidding.
R.A. No. 9136 created PSALM for the principal purpose of undertaking the
mandated privatization of all disposable assets of the NPC as well as IPP
contracts in an optimal manner.21 Such disposition is made subject to all
existing laws, rules and regulations. Thus, the implementing rules of R.A.
No. 9136 provided guidelines in the privatization to be conducted by PSALM,
among which are:
(a) The Privatization value to the National Government of the NPC
generation assets, real estate, other disposable assets as well as IPP
contracts shall be optimized; cralawlawli bra ry
xxxx
(d) All assets of NPC shall be sold in an open and transparent manner
through public bidding, and the same shall apply to the disposition of IPP
contracts;cralawlawlib rary
x x x x22 (Emphasis supplied) ChanRobles Vi rtua lawlib rary
Specifically Section 51 (m) of the EPIRA empowered PSALM "[t]o restructure
the sale, privatization or disposition of NPC assets and IPP contracts and/or
their energy output based on such terms and conditions which shall optimize
the value and sale prices of said assets." Any act of PSALM that violates
these provisions and other applicable laws may constitute grave abuse of
discretion. There is grave abuse of discretion (1) when an act is done
contrary to the Constitution, the law or jurisprudence; or (2) when it is
executed whimsically, capriciously or arbitrarily out of malice, ill will or
personal bias.23
However, the implementation of EPIRA may not be restrained or enjoined
except by order issued by this Court.24 Petitioner's resort to this Court to
obtain an order enjoining PSALM's privatization of the NPPC through SPC's
invalid exercise of its right to option, was therefore proper and justified.
Legal Standing
We have held that legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any official action which
they claim infringes their prerogatives as legislators.25 In this case, there
was no allegation of usurpation of legislative function as petitioner is suing in
his capacity as Chairperson of the Committee created pursuant to Section 62
of R.A. No. 9136. Such position by itself is not sufficient to vest petitioner
with standing to institute the present suit. Notably, the enumerated
functions of the Committee under the aforesaid provision are basically "in
aid of legislation."
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."26 When the proceeding involves the assertion of a public right, the
mere fact that the petitioner is a citizen satisfies the requirement of personal
interest.27
The privatization of power plants in a manner that ensures the reliability and
affordability of electricity in our country pursuant to the EPIRA is an issue of
paramount public interest. Petitioner has underscored the effect of the right
to top provision in preventing a competitive public bidding for the NPPC.
While the alleged detrimental result referred to the severe power shortage
that occurred in only one region, PSALM had admitted that the right to top
provisions are also found in several other land lease agreements.
In the light of the foregoing considerations, we hold that petitioner
possesses the requisite legal standing to file this case.
Validity of Right to
Top provision in LBGT-LLA
The provision in the LBGT-LLA which is assailed in the present petition
reads:
3.02 Exclusive Right of LESSOR
Nothing in this Agreement shall limit the right of the LESSOR to sell, lease,
alienate or encumber any property in the vicinity of the Leased Premises
which is not part of the Leased Premises to any Person; provided, the
LESSEE shall have the right to top the price of the winning bidder for the
sale or lease of such property. In exercising the right to top, the LESSEE
must exceed the bid of the winning bidder by five percent (5%). The right to
top granted to the LESSEE must be exercised and paid within a period of
thirty (30) days from the receipt of written notice from the LESSOR notifying
the LESSEE of the result of the bidding or negotiation and the price of the
winning bid.
In the event of a lease, upon the exercise by the LESSEE of the right to top
granted herein, the property covered by it shall form part of the Leased
Premises and shall be governed by this Agreement. In the event of a sale,
upon the exercise by the LESSEE of the right to top granted herein, the
property covered by the sale shall not form part of the Leased Premises.28
A right to top is a variation of the right of first refusal often incorporated in
lease contracts. When a lease contract contains a right of first refusal, the
lessor is under a legal duty to the lessee not to sell to anybody at any price
until after he has made an offer to sell to the latter at a certain price and the
lessee has failed to accept it. The lessee has a right that the lessor's first
offer shall be in his favor.29 While sometimes referred to as a "first option to
buy" or "option of first refusal," a right of first refusal is not an option
contract. We explained the distinction between a right of first refusal and
option to purchase in Spouses Vasquez v. Ayala Corporation,30 to wit:
The Court has clearly distinguished between an option contract and a right
of first refusal. An option is a preparatory contract in which one party grants
to another, for a fixed period and at a determined price, the privilege to buy
or sell, or to decide whether or not to enter into a principal contract. It binds
the party who has given the option not to enter into the principal contract
with any other person during the period designated, and within that period,
to enter into such contract with the one to whom the option was granted, if
the latter should decide to use the option. It is a separate and distinct
contract from that which the parties may enter into upon the consummation
of the option. It must be supported by consideration.
In a right of first refusal, on the other hand, while the object might be made
determinate, the exercise of the right would be dependent not only on the
grantor's eventual intention to enter into a binding juridical relation with
another but also on terms, including the price, that are yet to be firmed
up.31
We disagree with petitioner's theory that SPC's right of first refusal should
be declared void as it was not supported by a separate consideration. As we
held in Polytechnic University of the Philippines v. Golden Horizon Realty
Corporation32:
Indeed, basic is the rule that a party to a contract cannot unilaterally
withdraw a right of first refusal that stands upon valuable consideration. We
have categorically ruled that it is not correct to say that there is no
consideration for the grant of the right of first refusal if such grant is
embodied in the same contract of lease. Since the stipulation forms
part of the entire lease contract, the consideration for the lease
includes the consideration for the grant of the right of first refusal.
In entering into the contract, the lessee is in effect stating that it consents to
lease the premises and to pay the price agreed upon provided the lessor also
consents that, should it sell the leased property, then, the lessee shall be
given the right to match the offered purchase price and to buy the property
at that price.33 (Emphasis supplied)
Stipulations on right of first refusal over the leased premises have been held
to be valid as they are commonly inserted in contracts of lease for the
benefit of lessees who wanted to be assured that they shall be given the first
crack or the first option to buy the property at the price which the owner is
willing to accept. Where such right of first refusal is incorporated in lease
contracts involving public assets, however, courts go beyond ascertaining
and giving effect to the intent of the contracting parties. For in this
jurisdiction, public bidding is the established procedure in the grant of
government contracts. The award of public contracts, through public bidding,
is a matter of public policy.34
In the award of government contracts, the law requires a competitive public
bidding, which aims to protect the public interest by giving the public the
best possible advantages thru open competition. It is a mechanism that
enables the government agency to avoid or preclude anomalies in the
execution of public contracts.35
In JG Summit Holdings, Inc. v. Court of Appeals,36 this Court was presented
with the issue of validity of right of first refusal granted to both parties under
a joint venture agreement between a government corporation (National
Investment and Development Corporation) and private firm (Kawasaki
Heavy Industries, Ltd. of Kobe, Japan) should either of them decide to sell,
assign or transfer its interest in the joint venture. In the subsequent
negotiations for the sale of the government's interest, it was agreed that
Kawasaki's right of first refusal be exchanged for the right to top by five
percent (5%) the highest bid for the subject shares. We initially granted the
petition for review on certiorari and reversed the Court of Appeals' dismissal
of the petition for mandamus questioning the aforesaid right to top which
was held illegal not only because it violates the rules on competitive bidding
but more so because it allows foreign corporations to own more than 40%
equity in the shipyard.
On motions for reconsideration filed by the parties, we ruled that the right to
top granted to and exercised by Kawasaki did not violate the rules on
competitive bidding, viz:
We also hold that the right to top granted to KAWASAKI and exercised by
private respondent did not violate the rules of competitive bidding.
The word "bidding" in its comprehensive sense means making an offer or an
invitation to prospective contractors whereby the government manifests its
intention to make proposals for the purpose of supplies, materials and
equipment for official business or public use, or for public works or
repair. The three principles of public bidding are: (1) the offer to the
public; (2) an opportunity for competition; and (3) a basis for
comparison of bids. As long as these three principles are complied
with, the public bidding can be considered valid and legal, x x x
xxxx
In the instant case, the sale of the Government shares in PHILSECO was
publicly known. All interested bidders were welcomed. The basis for
comparing the bids were laid down. All bids were accepted sealed and were
opened and read in the presence of the COA's official representative and
before all interested bidders. The only question that remains is whether or
not the existence of KAWASAKI's right to top destroys the essence of
competitive bidding so as to say that the bidders did not have an
opportunity for competition. We hold that it does not.
The essence of competition in public bidding is that the bidders are
placed on equal footing. This means that all qualified bidders have
an equal chance of winning the auction through their bids. In the case
at bar, all of the bidders were exposed to the same risk and were subjected
to the same condition, i.e., the existence of KAWASAKI's right to top. Under
the ASBR, the Government expressly reserved the right to reject any or all
bids, and manifested its intention not to accept the highest bid should
KAWASAKI decide to exercise its right to top under the ABSR. This
reservation or qualification was made known to the bidders in a pre-bidding
conference held on September 28, 1993. They all expressly accepted this
condition in writing without any qualification. Furthermore, when the
Committee on Privatization notified petitioner of the approval of the sale of
the National Government shares of stock in PHILSECO, it specifically stated
that such approval was subject to the right of KAWASAKI Heavy Industries,
Inc./Philyards Holdings, Inc. to top JGSMI's bid by 5% as specified in the
bidding rules. Clearly, the approval of the sale was a conditional one. Since
Philyards eventually exercised its right to top petitioner's bid by 5%, the sale
was not consummated. Parenthetically, it cannot be argued that the
existence of the right to top "set for naught the entire public
bidding." Had Philyards Holdings, Inc. failed or refused to exercise its right
to top, the sale between the petitioner and the National Government would
have been consummated. In like manner, the existence of the right to top
cannot be likened to a second bidding, which is countenanced, except when
there is failure to bid as when there is only one bidder or none at all. A
prohibited second bidding presupposes that based on the terms and
conditions of the sale, there is already a highest bidder with the right to
demand that the seller accept its bid. In the instant case, the highest
bidder was well aware that the acceptance of its bid was conditioned
upon the non-exercise of the right to top.
To be sure, respondents did not circumvent the requirements for bidding by
granting KAWASAKI, a non-bidder, the right to top the highest bidder. The
fact that KAWASAKI's nominee to exercise the right to top has among its
stockholders some losing bidders cannot also be deemed "unfair."
It must be emphasized that none of the parties questions the existence
of KAWASAKI's right of first refusal, which is concededly the basis
for the grant of the right to top. Under KAWASAKI's right of first refusal,
the National Government is under the obligation to give preferential right to
KAWASAKI in the event it decides to sell its shares in PHILSECO. It has to
offer to KAWASAKI the shares and give it the option to buy or refuse under
the same terms for which it is willing to sell the said shares to third
parties. KAWASAKI is not a mere non-bidder. It is a partner in the joint
venture; the incidents of which are governed by the law on contracts and on
partnership.
It is true that properties of the National Government, as a rule, may be sold
only after a public bidding is held. Public bidding is the accepted method in
arriving at a fair and reasonable price and ensures that overpricing,
favoritism and other anomalous practices are eliminated or minimized. But
the requirement for public bidding does not negate the exercise of
the right of first refusal. In fact, public bidding is an essential first
step in the exercise of the right of first refusal because it is only
after the public bidding that the terms upon which the Government
may be said to be willing to sell its shares to third parties may be
known. It is only after the public bidding that the Government will
have a basis with which to offer KAWASAKI the option to buy or
forego the shares.37 (Emphasis supplied) ChanRob les Virtualawl ibra ry
The above-cited case involved a right of first refusal in favor of a contracting
party which did not participate in the bidding conducted for the sale of the
subject shares. In Power Sector Assets and Liabilities Management
Corporation v. Pozzolanic Philippines Incorporated,38 the right of first refusal
was held invalid for being contrary to public policy, as it dispensed with
public bidding for future sale of waste products by the NPC. Respondent
therein had earlier won the public bidding for the purchase of the fly ash
generated by NPC's power plant in Batangas. Subsequently, after
negotiations, NPC entered into a long-term contract with respondent for the
purchase of fly ash to be produced by NPC's future coal-fired plants. The
provision granting the right of first refusal to respondent reads:
PURCHASER has first option to purchase Fly Ash under similar terms and
conditions as herein contained from the second unit of Batangas Coal-Fired
Thermal Plant that the CORPORATION may construct. PURCHASER may also
exercise the right of first refusal to purchase fly ash from any new coal-
fired plants which will be put up by CORPORATION.39
We held that the grant of first refusal to respondent constitutes an
unauthorized provision in the contract that was entered into pursuant to the
bidding, having been contractually bargained for by respondent after it won
the public bidding for the purchase of fly ash from NPC's Batangas Power
Plant. We noted that not only did the provision substantially amended the
terms of the contract bidded upon — so that resultantly, the other bidders
were deprived of the terms and opportunities granted to respondent after it
won the public auction -- it so altered the bid terms by effectively barring
any and a true biddings in the future. The right of first refusal being contrary
to public policy that government contracts must be awarded through public
bidding, it was therefore invalid and have no binding effect nor does it confer
a preferential right upon respondent to the fly ash of NPC's power plants.
Relevantly, we also held that the grant of right of first refusal to respondent
has no basis whatsoever considering that the bidding subject was still
inexistent. Thus:
Two: The right to buy fly ash precedes and is the basis of the right of first
refusal, and the consequent right cannot be acquired together with and at
the same time as the precedent right.
The right of first refusal has long been recognized, both legally and
jurisprudentially, as valid in our jurisdiction. It is significant to note,
however, that in those cases where the right of refusal is upheld by
both law and jurisprudence, the party in whose favor the right is
granted has an interest on the object over which the right of first
refusal is to be exercised. In those instances, the grant of the right
of first refusal is a means to protect such interest.
Thus, Presidential Decree (P.D.) No. 1517, as amended by P.D. No. 2016,
grants to qualified tenants of land in areas declared as urban land reform
zones, the right of first refusal to purchase the same within a reasonable
time and at a reasonable price. The same right is accorded by Republic Act
No. 7279 (Urban Development and Housing Act of 1992) to qualified
beneficiaries of socialized housing, with respect to the land they are
occupying. Accordingly, in Valderama v. Macalde, Paranaque Kings
Enterprises, Inc. v. Court of Appeals, and Conculada v. Court of Appeals, the
Supreme Court sustained the tenant's right of first refusal pursuant to P.D.
1517.
In Polytechnic University of the Philippines v. Court of Appeals and
Polytechnic University of the Philippines v. Golden Horizon Realty
Corporation, this Court upheld the right of refusal of therein respondent
private corporations concerning lots they are leasing from the
government.
In the case of Republic v. Sandiganbayan, the Presidential Commission on
Good Government (PCGG) sought to exercise its right of first refusal as a
stockholder of Eastern Telecommunications Philippines, Inc. (ETPI), a
corporation sequestered by the PCGG, to purchase ETPI shares being
sold by another stockholder to a non-stockholder. While the Court
recognized that PCGG had a right of first refusal with respect to ETPI's
shares, it nevertheless did not sustain such right on the ground that the
same was not seasonably exercised.
Finally, in Litonjua v. L & R Corporation, the Supreme Court recognized the
validity and enforceability of a stipulation in a mortgage contract granting
the mortgagee the right of first refusal should the mortgagor decide
to sell the property subject of the mortgage.
In all the foregoing cases, the party seeking to exercise the right has
a vested interest in, if not a right to, the subject of the right of first
refusal. Thus, on account of such interest, a tenant (with respect to the
land occupied), a lessee (vis-a-visthe property leased), a stockholder (as
regards shares of stock), and a mortgagor (in relation to the subject of the
mortgage), are all granted first priority to buy the property over which they
have an interest in the event of its sale. Even in the JG Summit Case, which
case was heavily relied upon by the lower court in its decision and by
respondent in support of its arguments, the right of first refusal to the
corporation's shares of stock - later exchanged for the right to top - granted
to KAWASAKI was based on the fact that it was a shareholder in the joint
venture for the construction, operation, and management of the Philippine
Shipyard and Engineering Corporation (PHILSECO).
In the case at bar, however, there is no basis whatsoever for the grant
to respondent of the right of first refusal with respect to the fly ash
of NPC power plants since the right to purchase at the time of
bidding is that which is precisely the bidding subject, not yet
existent much more vested in respondent.40(Emphasis and underscoring
supplied; citations omitted)
In this case, all potential bidders were aware of the existence of SPC's right
to top as duly disclosed in the Bidding Procedures for the 3rd Round of
Bidding for the NPPC.41 TPVI did not question the said right to top and
participated in the bidding where SPC was also a bidder. Emerging as the
winning bidder, TPVI nevertheless knew that the acceptance of its bid was
subject to SPC's exercise of the right to top by confirming its exercise of the
right of first refusal and paying the amount of the winning bid plus five
percent (5%).
Notwithstanding compliance with the conduct of bidding and procedures, we
hold that SPC's right to top under the LBGT-LLA is void for lack of a valid
interest or right to the object over which the right of first refusal is to be
exercised. First, the property subject of the right of first refusal is outside
the leased premises covered by the LBGT-LLA. Second, the right of first
refusal refers not only to land but to anyproperty within the vicinity of the
leased premises, as in this case, an entire power plant complex (NPPC) and
the land on which it is built. And third, while SPC cited concerns regarding
security, right of way or other operational requirements, these are clearly
not analogous to a lessee's legitimate interest on the property being leased.
Indeed, acquisition of a three coal-fired thermal plants with far greater
generating capacity than the gas turbine plant currently owned by SPC will
not be merely for purposes of the latter's reasonable access, security or
present operational needs. Besides, no such right or interest may be invoked
by SPC because, as confirmed by PSALM itself, SPC never operated the Naga
LBGT.
More recently, in LTFRB v. Stronghold Insurance Company,42 we declared as
void the right to matchclause in a memorandum of agreement which was
being invoked by respondent after it failed to meet capitalization
requirements and was consequently excluded by the petitioner from the pool
of qualified bidders for the third round of bidding to accredit providers of
accident insurance to operators of passenger public utility vehicles. The CA
granted respondent's petition for prohibition and nullified the said bidding
proceedings. On appeal, we reversed the CA and found no grave abuse of
discretion committed by the LTFRB, viz:
The Matching Clause in the First MOA, which Stronghold invokes as basis for
its right to participate in the third round of bidding, provides:cha nRoblesv irt ual Lawlib rary
[T]he two management groups herein shall be given the right to match the
best bid/proposal in event another management group qualifies at the end
of the term of this agreement[.] ChanRobles Virtualawl ibra ry
The Court of Appeals sustained Stronghold's claim, effectively reading the
Matching Clause to vest in Stronghold not only "the right to match the best
bid/proposal in event another management group qualifies at the end of the
term of this agreement," but also the prerogative not to comply with the
terms of the succeeding bidding. We find it unnecessary to pass upon the
correctness of the Court of Appeals' construction of the Matching Clause. It
is, in the first place, void.
The Matching Clause contains what is referred to in contract law as the right
of first refusal or the "right to match." Such stipulations grant to a party the
right to offer the sameamount as the highest bid to beat the highest bidder.
"Right to match" stipulations are different from agreements granting to a
party the so-called "right to top." Under the latter arrangement, a party is
accorded the right to offer a higher amount, usually a fixed sum or
percentage, to beat the highest bid.
In the field of public contracts, these stipulations are weighed with
the taint of invalidity for contravening the policy requiring
government contracts to be awarded through public bidding. Unless
clearly falling under statutory exceptions, government contracts for
the procurement of goods or services are required to undergo public bidding
"to protect the public interest by giving the public the best possible
advantages thru open competition." The inclusion of a right of first refusal in
a government contract executed post-bidding, as here, negates the essence
of public bidding because the stipulation "gives the winning bidder an x x x
advantage over the other bidders who participated in the bidding x x x."
Moreover, a "right of first refusal", " or "right to top," whether
granted to a bidder or non-bidder, discourages other parties from
submitting bids, narrowing the number of possible bidders and thus
preventing the government from securing the best bid.
These clauses escape the taint of invalidity only in the narrow
instance where the right of first refusal (or "right to top") is founded
on the beneficiary's "interest on the object over which the right of
first refusal is to be exercised" (such as a "tenant with respect to the
land occupied, a lessee vis-a-vis the property leased, a stockholder as
regards shares of stock, and a mortgagor in relation to the subject of the
mortgage") and the government stands to benefit from the
stipulation. Thus, we upheld the validity of a "right to top" clause allowing
a private stockholder in a corporation to top by 5% the highest bid for the No costs.
shares disposed by the government in that corporation. Under the joint
venture agreement creating the corporation, a party had the right of first SO ORDERED. chanroblesvi rtua lla

refusal in case the other party disposed its shares. The government, the
disposing party in the joint venture agreement, benefitted from the 5%
increase in price under the "right to top," on outcome better than the right
of first refusal.

The Matching Clause in this case does not fall under this narrow
exception. The First MOA (and for that matter the Second MOA) was a
contract for the procurement of services; hence, there is no "object" over
which Stronghold can claim an interest which the Matching Clause protects.
Nor did the government benefit from the inclusion of the Matching Clause in
the First MOA. The Matching Clause was added in the First MOA "in
consideration, x x x of the initial investment and the assumption of initial
risk" of the two accredited management groups. These "initial investment"
and "initial risk," however, are inherent in the business of providing accident
insurance to public utility vehicle operators, which the bidders for the First
MOA, including Stronghold's group UNITRANS, logically took into account
when they submitted their bids to LTFRB. The government was under no
obligation to reward the accredited insurers' investment and risk-taking with
a right of first refusal stipulation at the expense of denying the public the G.R. No. 194239 June 16, 2015
benefits public bidding brings, and did bring, to select the insurance
providers in the Second MOA.43 (Emphasis supplied) WEST TOWER CONDOMINIUM CORPORATION, on behalf of the
Residents of West Tower Condominium and in representation of
In the light of the foregoing, we hold that the grant of right to top to SPC
under the LBGT-LLA is void as it is not founded on the said lessee's Barangay Bangkal, and others, including minors and generations
legitimate interest over the leased premises. SPC's argument that the yet unborn,Petitioners,
privatization of NPPC was even more advantageous to the Government, vs.
simply because it resulted in a higher price (Php54 million more) than TPVI's FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN
winning bid, is likewise untenable. Whatever initial gain from the higher CORPORATION and their RESPECTIVE BOARD OF DIRECTORS
price obtained for the NPPC compared to the original bid price of TPVI is
AND OFFICERS, JOHN DOES, and RICHARD DOES, Respondents.
negated by the fact that SPC's right to top had discouraged more potential
buyers from submitting their bids, knowing that even their most reasonable
bid can be defeated by SPC's exercise of its right to top. In fact, only SPC DECISION
and TPVI participated in the 3rd Round of Bidding. Attracting as many
bidders to participate in the bidding for public assets is still the better means
to secure the best bid for the Government, and achieve the objective under
VELASCO, JR., J.:
the EPIRA to private NPC's assets in the most optimal manner.
Nature of the Case
WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ
prayed for accordingly GRANTED. The right of first refusal (right to top)
granted to Salcon Power Corporation under the 2009 Naga LBGT-LLA is Before the Court is the Petition for the Issuance of a Writ of Kalikasan
hereby declared NULL and VOID. Consequently, the Asset Purchase filed following the leak in the oil pipeline owned by First Philippine
Agreement (NPPC-APA) and Land Lease Agreement (NPPC-LLA) executed by Industrial Corporation (FPIC) in Makati City. The Facts
the Power Sector Assets and Liabilities Management Corporation and SPC
are ANNULLED and SET ASIDE.
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the
White Oil Pipeline (WOPL) System, which covers a 117-kilometer
stretch from Batangas to the Pandacan Terminal in Manila and
transports diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil
Pipeline (BOPL) System which extends 105 kilometers and transports
bunker fuel from Batangas to a depot in Sucat, Parañaque. These
systems transport nearly 60% of the petroleum requirements of Metro
Manila and parts of the provinces of Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than
double the standard safety allowance against leakage, considering that
they are made out of heavy duty steel that can withstand more than
twice the current operating pressure and are buried at a minimum
depth of 1.5 meters, which is deeper than the US Department of
Transportation standard of 0.9 meters. In May 2010, however, a
leakage from one of the pipelines was suspected after the residents of
West Tower Condominium (West Tower) started to smell gas within the
condominium. A search made on July 10, 2010 within the
condominium premises led to the discovery of a fuel leak from the wall
of its Basement 2. Owing to its inability to control the flow, West
Tower's management reported the matter to the Police Department of
Makati City, which in turn called the city's Bureau of Fire Protection.
What started as a two-drum leak at the initial stages became a 15-20
drum a day affair. Eventually, the sump pit of the condominium was
ordered shut down by the City of Makati to prevent the discharge of
contaminated water into the drainage system of Barangay Bangkal.
Eventually, the fumes compelled the residents of West Tower to
abandon their respective units on July 23, 2010 and the condo's power
was shut down.
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus,
the residents of West Tower shouldered the expenses of hauling the
waste water from its basement, which eventually required the setting
up of a treatment plant in the area to separate fuel from the waste
water. On October 28, 2010, the University of the Philippines-National
Institute of Geological Sciences (UP-NIGS), which the City of Makati
invited to determine the source of the fuel, found a leak in FPIC's
WOPL about 86 meters from West Tower.
A day after, or on October 29, 2010, FPIC admitted that indeed the
source of the fuel leak is the WOPL, which was already closed since
October 24, 2010, but denied liability by placing blame on the
construction activities on the roads surrounding West Tower.
On November 15, 2010, West Tower Condominium Corporation (West
Tower Corp.) interposed the present Petition for the Issuance of a Writ
of Kalikasan on behalf of the residents of West Tower and in
representation of the surrounding communities in Barangay Bangkal,
Makati City. West Tower Corp. also alleged that it is joined by the civil
society and several people's organizations, non-governmental
organizations and public interest groups who have expressed their
intent to join the suit because of the magnitude of the environmental
issues involved.1
In their petition, petitioners prayed that respondents FPIC and its board
of directors and officers, and First Gen Corporation (FGC) and its
board of directors and officers be directed to: (1) permanently cease
and desist from committing acts of negligence in the performance of
their functions as a common carrier; (2) continue to check the structural
integrity of the whole 117-kilometer pipeline and to replace the same;
(3) make periodic reports on their findings with regard to the 117-
kilometer pipeline and their replacement of the same; (4) rehabilitate
and restore the environment, especially Barangay Bangkal and West
Tower, at least to what it was before the signs of the leak became
manifest; and (5) to open a special trust fund to answer for similar and
future contingencies in the future. Furthermore, petitioners pray that
respondents be prohibited from opening the pipeline and allowing the
use thereof until the same has been thoroughly checked and replaced,
and be temporarily restrained from operating the pipeline until the final
resolution of the case.
To bolster their petition, petitioners argued that FPIC's omission or
failure to timely replace. its pipelines and to observe extraordinary
diligence caused the petroleum spill in the City of Makati. Thus, for
petitioners, the continued use of the now 4 7-year old pipeline would
not only be a hazard or a threat to the lives, health, and property of
those who live or sojourn in all the municipalities in which the pipeline
is laid, but would also affect the rights of the generations yet unborn to
live in a balanced and "healthful ecology," guaranteed under Section
16, Article II of the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a
Temporary Environmental Protection Order (TEPO) requiring
respondents FPIC, FGC, and the members of their Boards of Directors
to file their respective verified returns. The TEPO enjoined FPIC and
FGC to: (a) cease and desist from operating the WOPL until further
orders; (b) check the structural integrity of the whole span of the 11 7-
kilometer WOPL while implementing sufficient measures to prevent
and avert any untoward incident that may result from any leak of the
pipeline; and ( c) make a report thereon within 60 days from receipt
thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier,
Dennis Gamab and Willie Sarmiento submitted a Joint Return3 praying
for the dismissal of the petition and the denial of the privilege of the
Writ of Kalikasan. They alleged that: petitioners had no legal capacity
to institute the petition; there is no allegation that the environmental
damage affected the inhabitants of two (2) or more cities or provinces;
and the continued operation of the pipeline should be allowed in the
interest of maintaining adequate petroleum supply to the public.
Respondents FPIC and its directors and officers, other than the
aforementioned four ( 4) directors, also filed a Verified Return4 claiming
that not all requirements for the issuance of the Writ of Kalikasan are
present and there is no showing that West Tower Corp. was authorized
by all those it claimed to represent. They further averred that the
petition contains no allegation that respondents FPIC directors and
officers acted in such a manner as to allow the piercing of the
corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board
of Directors and Officers filed a Joint Compliance5 submitting the report
required by the Writ of Kalikasan/TEPO. They contended that they
neither own nor operate the pipelines, adding that it is impossible for
them to report on the structural integrity of the pipelines, much less to
cease and desist from operating them as they have no capability,
power, control or responsibility over the pipelines. They, thus, prayed
that the directives of the Writ of Kalikasan/TEPO be considered as
sufficiently performed, as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its
4-page "Report on Pipeline Integrity Check and Preventive
Maintenance Program."6 In gist, FPIC reported the following: (I) For the
structural integrity of the 117-kilometer pipeline, (a) the DOE engaged
the services of UP-NIGS to do borehole testing on 81 pre-identified
critical areas of the WQPL in eight cities and municipalities-all the
boreholes showed negative presence of petroleum vapors; (b)
pressure tests were conducted after the repair of the leak and results
showed negative leaks and the DOE's pipeline expert, Societe General
de Surveillance, New Zealand, has developed a pressure test protocol
requiring a 24-hour operation of running a scraper pig through the
pipeline to eliminate air gap; (c) In-Line Inspection Test, was conducted
by NDT through MFL and ultrasonic. The NDT later cleared the WOPL
from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection
Systems are installed involving the use of anode materials and the
introduction of electric current in the pipeline to enhance prevention of
corrosion; (b) Regular Scraper Runs through the pipeline to maintain
cleanliness and integrity of the pipelines' internal surface; (c) Daily
Patrols every two hours of the pipeline route to deter unauthorized
diggings in the vicinity of the pipeline segments; ( d) Regular
coordination meetings with DPWH, MMDA and utility companies to
monitor projects that might involve digging or excavation in the vicinity
of the pipeline segments; (e) Installation of Security Warning Signs
along the pipeline route with toll free number which can be called in the
event of an accident or emergency; (f) Emergency Response
Procedure of the ERT is activated by a call-out procedure; (g)
Maintenance of Emergency Equipment and Repair Kit which are
always on standby; and, (h) Remotely controlled Isolation Valves are in
place to shut the pipeline when necessary.
On February 9, 2011, petitioners filed, and the Court eventually
granted, their Motion to Set the Case for Preliminary Conference and
Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for
Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the
WOPL in the vicinity of West Tower to determine the veracity of the
claim that there were two (2) additional leaks on FPIC's pipeline.
Results of the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints
against respondents arising from the same incident or leakage from the
WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO
on November 19, 2010, FPIC has ceased operations on both the
WOPL and the BOPL. On May 31, 2011, however, the Court,
answering a query of the DOE, clarified and confirmed that what is
covered by the Writ of Kalikasan and TEPO is only the WOPL System
of FPIC; thus, FPIC can resume operation of its BOPL System.9
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the
Court's May 31, 2011 Resolution, praying for the conduct of oral
argument on the issue of reopening the BOPL System. This was
followed, on September 9, 2011, by a Manifestation (Re: Current
Developments) with Omnibus Motion11 wherein petitioners invoked the
precautionary principle12 and asserted that the possibility of a leak in
the BOPL System leading to catastrophic environmental damage is
enough reason to order the closure of its operation. They likewise
alleged that the entities contracted by FPIC to clean and remediate the
environment are illegally discharging waste water, which had not
undergone proper treatment, into the Parañaque River. Petitioners,
thus, prayed that respondents be directed to comply with
environmental laws in rehabilitating the surroundings affected by the oil
leak and to submit a copy of their work plan and monthly reports on the
progress thereof. To these omnibus motions, respondents were
directed to file their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for
Leave (To Undertake "Bangkal Realignment" Project)13 in order to
reduce stress on the WOPL System. FPIC sought to construct a new
realigned segment to replace the old pipe segment under the
Magallanes Interchange, which covers the portion that leaked.
Petitioners were directed to file their comment on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the
case to the Court of Appeals (CA). By this Court's Resolution dated
November 22, 2011,14 the appellate court was required to conduct
hearings and, thereafter, submit a report and recommendation within
30 days after the receipt of the parties' memoranda.
On March 21, 2012, the preliminary conference was continued before
the CA wherein the parties made admissions and stipulations of facts
and defined the issues for resolution. In view of the technical nature of
the case, the CA also appointed15 several amici curiae,16 but only four
(4) filed their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the
Court its well-crafted and exhaustive 156-page Report and
Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing
the reopening of the BOPL System, the CA directed
respondent FPIC to submit the appropriate certification from
the DOE as to the safe commercial operation of the BOPL;
otherwise, the operation of the BOPL must also be enjoined.
2. On petitioners' September 9, 2011 Manifestation (Re:
Current Developments) with Omnibus Motion, the CA directed
the Inter-Agency Committee on Health to submit its evaluation
of the remediation plan prepared by CH2M Hill Philippines, Inc.
for FPIC. Further, the appellate court directed FPIC to strictly
comply with the stipulations contained in the permits issued by
the Department of Environment and Natural Resources
(DENR) for its remediation activities in Barangay Bangkal,
Makati City. The DENR was in turn directed by the CA to:
(a) monitor compliance by respondent FPIC with
applicable environmental laws and regulations and
conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the
Multi-Phase Extraction System;
(c) conduct regular consultative meetings with the City
of Makati, residents of Barangay Bangkal and other
stakeholders concerning the remediation activities; and,
 (d) evaluate the viability of the recommendation of
amicus Dr. Benjamin R. De Jesus, Jr. to include the
use of surfactants and oxygen-releasing compounds
(ORCs) in the middle and terminal portions of the
remediation plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave
(To Undertake "Bangkal Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental
Manifestation (Re: List of Amici Curiae and Recent Possible
Leak in the Pipeline) filed by petitioners, the CA found that the
existence of another possible leak alleged by petitioners was
not established. Nonetheless, to prevent such event, the CA
ordered FPIC to: (i) review, adopt and strictly observe
appropriate safety and precautionary measures; (ii) closely
monitor the conduct of its maintenance and repair works; and
(iii) submit to the DOE regular monthly reports on the structural
integrity and safe commercial operation of the pipeline.
5. As to the merits of the case, the CA submitted the following
recommendations:
(a) That the people's organizations, non-governmental
organizations, and public interest groups that indicated
their intention to join the petition and submitted proof of
juridical personality (namely: the Catholic Bishop's
Conference of the Philippines; Kilusang Makabansang
Ekonomiya, Inc.; Women's Business Council of the
Philippines, Inc.; Junior Chambers International
Philippines, Inc. - San Juan Chapter; Zonta Club of
Makati Ayala Foundations; and the Consolidated
Mansions Condominium Corporation) be allowed to be
formally impleaded as petitioners.
(b) That respondent FPIC be ordered to submit a
certification from the DOE Secretary that the WOPL is
already safe for commercial operation. The certification
should take into consideration the adoption by FPIC of
the appropriate leak detection system to be used in
monitoring the entire pipeline's mass input versus mass
output. The certification must also consider the
necessity of replacing the pipes with existing patches
and sleeves. In case of failure of respondent FPIC to
submit the required certification from the DOE
Secretary within sixty (60) days from notice of the
Honorable Supreme Court's approval of this
recommendation, the TEPO must be made permanent.
(c) That petitioners' prayer for the creation of a special
trust fund to answer for similar contingencies in the
future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable
under the TEPO.
(e) That without prejudice to the outcome of the civil
and criminal cases filed against respondents, the
individual directors and officers of FPIC and FGC be
not held liable in their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial
Reconsideration19 of the CA's Report praying that (a) instead of the
DOE, the required certification should be issued by the DOST-Metal
Industry Research and Development Center; (b) a trust fund be
created to answer for future contingencies; and ( c) the directors and
officers of FPIC and FGC be held accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of
Energy Certification on the Black Oil Pipeline)20and submitted the
required DOE Certification21 issued on January 22, 2013 by DOE
Secretary Carlos Jericho L. Petilla (Secretary Petilla). On March 14,
2013, petitioners countered with a Manifestation with Motion22 asserting
that FPIC's certification is not compliant with the CA's requirement.
Hence, petitioners moved that the certification should be disregarded,
the 30-day period be deemed to have lapsed, and FPIC be
permanently enjoined from operating the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the
recommendation of the CA in its Report and Recommendation that
FPIC be ordered to secure a certification from the DOE Secretary
before the WOPL may resume its operations. The pertinent portion of
said Resolution reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE
Secretary that the pipeline is already safe for commercial operation.
The certification should take into consideration the adoption by FPIC of
the appropriate leak detection system to be used in monitoring the
entire pipeline's mass input versus mass output. The certification must
also consider the necessity of replacing the pipes with existing patches
and sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding the
adoption of the appropriate leak detection system and the necessity of
replacing the pipes with existing patches and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with
Motion for Clarification, emphasized that the CA found FPIC's tests and
maintenance program to be insufficient and inconclusive to establish
the WOPL' s structural integrity for continued commercial
operation.24 Furthermore, petitioners point out that the DOE is biased
and incapable of determining the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical
competence and expertise to assess the structural integrity of the
WOPL and to certify the system's safety for commercial
operation.25 Respondents further allege that the DOE is the agency
empowered to regulate the transportation and distribution of petroleum
products, and to regulate and monitor downstream oil industry
activities, including "product distribution" through pipelines.26
In compliance with the Court's July 30, 2013 Resolution, the DOE
Secretary issued on October 25, 2013 a Certification,27 attesting that
the WOPL is safe to resume commercial operations, subject to
monitoring or inspection requirements, and imposing several conditions
that FPIC must comply with. The Certification, in its entirety, reads:
This is to certify that based on the Pipeline Integrity Management
Systems (PIMS) being implemented by [FPIC] for its [WOPL] facility,
the same is safe to resume commercial operations. This certification is
being issued after consultation with the [DOST] and on the basis of the
following considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak
detection system to be used in monitoring the pipeline's mass
input versus mass output, as well as the other measures of
leak detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken
realignment and reinforcement works on the current pipeline to
remove majority of the patches. FPIC has likewise presented
substantial and adequate documentation showing that the
remaining patches and sleeves are safe, and that the use of
such is recognized by the industry and complies with existing
standards;
3. DOE finally noted the results of various tests and inspections
done on the pipeline as indicated in the Manifestation
submitted by ,the DOE on March 31, 2012, in the civil case
docketed as CA GR SP No. 00008 and entitled West Tower
Condominium, et al. [v.] First Philippine Industrial Corporation,
et al.
This certification is being issued subject to the condition that FPIC will
submit itself to regular monitoring and validation by the Oil Industry
Management Bureau (OIMB) of the implementation of its PIMS,
particularly on the following: (a) mass or volume input versus mass or
volume output loss/gain accounting; (b) results of borehole monitoring,
(c) inspection of the pipeline cathodic protection and (d) pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE
and DOST may deem appropriate for purposes of monitoring the
operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and the
adverse effects of a prolonged closure thereof. Nevertheless, there is a
need to balance the necessity of the immediate reopening of the
WOPL with the more important need to ensure that it is sound for
continued operation, since the substances it carries pose a significant
hazard to the surrounding population and to the environment.28 A
cursory review of the most recent oil pipeline tragedies around the
world will readily show that extreme caution should be exercised in the
monitoring and operation of these common carriers:
(1) On August 1, 2014, a series of powerful explosions from
underground pipeline systems ripped up the streets of
Kaohsiung, Taiwan, killing at least 28 people and injuring 299
more. Further, 23 ,600, 2,268 and 6,000 households were left
without gas, power and water, respectively, in the 2-3 square
kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire,
and exploded in Qingdao, Shangdao Province in China, killing
55 people and injuring more than a hundred more.30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's
capital city, Nairobi, reducing bodies to dust and flattening
homes. At least 7 5 people died in the explosion, while more
than a hundred people were injured.31
(4) In September 2010, a natural gas pipeline ruptured and set
off a fireball, killing eight (8) people and leveling 3 8 homes in
San Bruno, California in the United States.32
(5) On July 30, 2004, a rupture of an underground natural gas
pipeline buried six (6) meters in Ghislenghien, Belgium resulted
in 24 deaths and over 120 injuries.33
On April 29 and 30, 2014, the DOE organized a dialogue between said
government agencies and the FPIC. There it was stated that during the
dialogue, "the division heads and a high profile team from FPIC, both
from operation and management made presentations and answered
questions on pipeline pumping operation and product delivery, and a
detailed explanation of the FPIC PIMS' control measures, condition
monitoring measures, and emergency measures, as well as its various
activities and projects implemented since 2010 such as pipeline
replacement and realignment in Pandacan and Bangkal, inspection
and reinforcement of all patches in the WOPL, inspection and
reinforcement of a number of reported dents in the WOPL, conduct of
successful leak tests, and installation of boreholes that are gas-tested
on a weekly basis, and the safety systems that go with the daily
pipeline operation and maintenance and project execution."34
On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE
submitted a letter35 recommending activities and timetable for the
resumption of the WOPL operations, to wit:
A. Preparatory to the Test Run
I. FPIC Tasks:
a. Continue submission of monitoring charts, data/reading,
accomplishment reports, and project status for all related
activities/works. Respond to comments and prepare for site
inspection.
b. Continue gas testing along the right-of-way using the
monitoring wells or boreholes. Prepare for inspection of right-
of-way and observation of gas testing activities on monitoring
wells and boreholes.
c. Expound on the selection of borehole location. For example,
identify those located in pipeline bends, bodies of water,
residential areas, repaired portions of the pipelines, dents and
welded joints.
d. Continue submitting status report relating to "Project Mojica"
(an ongoing pipeline segment realignment activity undertaken
by FPIC to give way to a flood control project of MMDA in the
vicinity of Mojica St. and Pres. Osmeña Highway in Makati
City). Prepare for site inspection.
II. Inter-agency undertaking:
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already
inspected and reinforced with Clockspring sleeves.
 i. Determine location of sleeves.
ii. Review of procedures on repair of sleeves.
iii. Random visual inspection of areas easily accessible.
c. Cathodic protection's onsite inspection on rectifier to check
readings
i. Old readings
ii. Current Readings
iii. Segment covered
iv. Criteria for prioritization for corrective action
d. Observe and witness the running/operation of the cleaning
pig.
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
a. Perform Cleaning Pig Run
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning.
b. Demonstrate Various Pressure Tests (already being
conducted by FPIC)
i. Blocked-in pressure test (Leak Test, not in operation)
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes)
i. Ocular inspection of selected areas
d. Demonstrate mass or volume balance computation during
WOPL test run (already being implemented in the BOPL)
i. 30 days baseline data generation
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation
I. FPIC Tasks:
a. Continue implementation of the PIMS. Review
recommendations from DOE.
b. Continue monthly reporting of operations and maintenance
activities with DOE.
c. Continue reporting and coordination with DOE and other
government agencies for implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014
letter that the DOE, together with the DPWH and the Metropolitan
Manila Development Authority (MMDA), observed the different
milestones of the realignment project being undertaken by FPIC in
support of the MMDA Flood Control Project and stated that the new
line segment as laid was coated with corrosion protection prior to the
backfilling of the excavated portion.
On February 3, 2015, the Court required the parties to submit their
comment on Sec. Petilla's letter within ten (10) days from receipt of the
Resolution. On various dates, respondents First Gen Corporation,
FPIC, and petitioner West Tower filed their respective comments37 in
compliance with the Court's resolution. The intervenors were unable to
comply with the Court's directive; hence, they are deemed to have
waived their right to file their respective comments. The Issues
Having received the October 25, 2013 Certification and the August 5,
2014 Letter from the DOE on the state of the WOPL, as well as the
parties' comments thereon, the following issues defined by the parties
during the March 21, 2012 preliminary conference are now ripe for
adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity
to represent the other petitioners and whether the other
petitioners, apart from the residents of West Tower and
Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order
should be issued to direct the respondents to perform or to
desist from performing acts in order to protect, preserve, and
rehabilitate the affected environment;
3. Whether a special trust fund should be opened by
respondents to answer for future similar contingencies; and
4. Whether FGC and the directors and officers of respondents
FPIC and FGC may be held liable under the environmental
protection order.38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and
discuss the foregoing issues in seriatim.
I.
Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that petitioners who
are affected residents of West Tower and Barangay Bangkal have the
requisite concern to be real parties-in-interest to pursue the instant
petition.
Residents of West Tower and Barangay Bangkal
As defined, 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.39 Generally, every action must be prosecuted or
defended in the name of the real parties-in-interest.40 In other words,
the action must be brought by the person who, by substantive law,
possesses the right sought to be enforced.41 Alternatively, one who has
no right or interest to protect cannot invoke the jurisdiction of the court
as party-plaintiff-in-action for it is jurisprudentially ordained that every
action must be prosecuted or defended in the name of the real party-in-
interest.42
In the case at bar, there can be no quibble that the oil leak from the
WOPL affected all the condominium unit owners and residents of West
Tower as, in fact, all had to evacuate their units at the wee hours in the
morning of July 23, 2010, when the condominium's electrical power
was shut down. Until now, the unit owners and residents of West
Tower could still not return to their condominium units. Thus, there is
no gainsaying that the residents of West Tower are real parties-in-
interest.
There can also be no denying that West Tower Corp. represents the
common interest of its unit owners and residents, and has the legal
standing to file and pursue the instant petition. While a condominium
corporation has limited powers under RA 4 726, otherwise known as
The Condominium Act,43 it is empowered to pursue actions in behalf of
its members. In the instant case, the condominium corporation .is the
management body of West Tower and deals with everything that may
affect some or all of the condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their
acquiescence to the filing of the petition for the issuance of the Writ of
Kalikasan, as the merits of such petition is, as aptly put by the CA, not
measured by the number of persons who signified their assent thereto,
but on the existence of a prima facie case of a massive environmental
disaster.
Moreover, the fact that no board resolution was submitted by West
Tower Corp. authorizing Manuel Dy Chuaunsu, Jr. to sign the
Verification and Certification of Non-forum Shopping is irrelevant. The
records show that petitioners submitted a notarized Secretary's
Certificate44 attesting that the authority of Chuaunsu to represent the
condominium corporation in filing the petition is from the resolution of
the total membership of West Tower Corp. issued during their
November 9, 2010 meeting with the requisite quorum. It is, thus, clear
that it was not the Board of West Tower Corp. which granted
Chuaunsu the authority but the full membership of the condominium
corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated
with the unit owners and residents of West Tower and are real parties-
in-interest to the instant case, i.e., if they so wish to join the petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of
the Philippines, Kilusang Makabansang Ekonomiya, Inc., Women's
Business Council of the Philippines, Inc., Junior Chambers
International Philippines, Inc. - San Juan Chapter, Zonta Club of Makati
Ayala Foundations, and the Consolidated Mansions Condominium
Corporation, as petitioners in the case, the Court already granted their
intervention in the present controversy in the adverted July 30, 2013
Resolution.
This is so considering that the filing of a petition for the issuance of a
writ of kalikasan under Sec. 1, Rule 745 of the Rules of Procedure for
Environmental Cases does not require that a petitioner be directly
affected by an environmental disaster. The rule clearly allows juridical
persons to file the petition on behalf of persons whose constitutional
right to a balanced and healthful ecology is violated, or threatened with
violation.
Thus, as parties to the case, they are entitled to be furnished copies of
all the submissions to the Court, including the periodic reports of FPIC
and the results of the evaluations and tests conducted on the WOPL.
Having disposed of the procedural issue, We proceed to the bone of
contention in the pending motions. Suffice it to state in the outset that
as regards the substantive issues presented, the Court, likewise,
concurs with the other recommendations of the CA, with a few
modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the
November 19, 2010 TEPO into a Permanent Environmental Protection
Order (PEPO) pursuant to Sec. 3,46 Rule 5 of the Rules of Procedure
for Environmental Cases. For its part, respondent FPIC asserts that
regular testing, as well as the measures that are already in place, will
sufficiently address any concern of oil leaks from the WOPL.
With respect to leak detection, FPIC claims that it has in place the
following systems: (a) regular cleaning scraper runs, which are done
quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent PIG, now
known as in-line inspections (ILI), which is done every five years; (c)
pressure monitoring valves; and ( d) 24-hour patrols. Additionally, FPIC
asserted that it also undertook the following: (a) monitoring of wells and
borehole testing/vapor tests; (b) leak tightness test, also known as
segment pressure test; (c) pressure-controlled test; (d) inspection and
reinforcement of patches; (e) inspection and reinforcement of dents;
and (f) Pandacan segment replacement.47Furthermore, in August 2010,
with the oil leak hogging the headlines, FPIC hired NDT Middle East
FZE (NDT) to conduct ILI inspections through magnetic flux leakage
(MFL) and ultrasonic tests to, respectively, detect wall thinning of the
pipeline and check it for cracks.
The CA, however, observed that all of these tests and measures are
inconclusive and insufficient for purposes of leak detection and pipeline
integrity maintenance. Hence, considering the necessary caution and
level of assurance required to ensure that the WOPL system is free
from leaks and is safe for commercial operation, the CA recommended
that FPIC obtain from the DOE a certification that the WOPL is already
safe for commercial operation. This certification, according to the CA,
was to be issued with due consideration of the adoption by FPIC of the
appropriate leak detection systems to monitor sufficiently the entire
WOPL and the need to replace portions of the pipes with existing
patches and sleeves. Sans the required certification, use of the WOPL
shall remain abated.
The Court found this recommendation of the appellate court proper.
Hence, We required FPIC to obtain the adverted DOE Certification in
Our July 30, 2013 Resolution. We deemed it proper to require said
certification from the DOE considering that the core issue of this case
requires the specialized knowledge and special expertise of the DOE
and various other administrative agencies. On October 25, 2013, the
DOE submitted the certification pursuant to the July 30, 2013
Resolution of the Court. Later, however, on August 5, 2014, DOE
Secretary Carlos Jericho I. Petilla submitted a letter recommending
certain activities and the timetable for the resumption of the WOPL
operations after conducting a dialogue between the concerned
government agencies and FPIC.
After a perusal of the recommendations of the DOE and the
submissions of the parties, the Court adopts the activities and
measures prescribed in the DOE letter dated August 5, 2014 to be
complied with by FPIC as conditions for the resumption of the
commercial operations of the WOPL. The DOE should, therefore,
proceed with the implementation of the tests proposed in the said
August 5, 2014 letter. Thereafter, if it is satisfied that the results
warrant the immediate reopening of the WOPL, the DOE shall issue an
order allowing FPIC to resume the operation of the WOPL. On the
other hand, should the probe result in a finding that the pipeline is no
longer safe for continued use and that its condition is irremediable, or
that it already exceeded its serviceable life, among others, the closure
of the WOPL may be ordered.
The DOE is specially equipped to consider FPIC's proper
implementation and compliance with its PIMS and to evaluate the
result of the various tests conducted on the pipeline. The DOE is
empowered by Sec. 12(b)(l), RA 7638 to formulate and implement
policies for the efficient and economical "distribution, transportation,
and storage of petroleum, coal, natural gas."48 Thus, it cannot be
gainsaid that the DOE possesses technical knowledge and special
expertise with respect to practices in the transportation of oil through
pipelines.
Moreover, it is notable that the DOE did not only limit itself to the
knowledge and proficiency available within its offices, it has also rallied
around the assistance of pertinent bureaus of the other administrative
agencies: the ITDI49of the DOST, which is mandated to undertake
technical services including standards, analytical and calibration
services; the MIRDC,50 also of the DOST, which is the sole government
entity directly supporting the metals and engineering industry;51 the
EMB52 of the DENR, the agency mandated to implement, among
others, RA 6969 (Toxic Substances and Hazardous and Nuclear
Waste Control Act of 1990) and RA 9275 (Philippine Clean Water Act
of 2004); and the BOD of the DPWH, which is mandated to conduct,
supervise, and review the technical design aspects of projects of
government agencies.53
The specialized knowledge and expertise of the foregoing agencies
must, therefore, be availed of to arrive at a judicious decision on the
propriety of allowing the immediate resumption of the WOPL's
operation. In a host of cases, this Court held that when the adjudication
of a controversy requires the resolution of issues within the expertise of
an administrative body, such issues must be investigated and resolved
by the administrative body equipped with the specialized knowledge
and the technical expertise.54 Hence, the courts, although they may
have jurisdiction and power to decide cases, can utilize the findings
and recommendations of the administrative agency on questions that
demand "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."55
Justice Leonen, in his dissent, is of the view that the petition should be
denied and the TEPO immediately lifted in light of the DOE's issuance
of a certification attesting to the safety of the WOPL for continued
commercial operations, thereby rendering the instant petition moot and
academic, seeking, as it does, the checking of the pipeline's structural
integrity. According to his dissent, the writ of kalikasan issued by the
Court has already served its functions and, therefore, is functus officio.
Moreover, he argues that directing the DOE and FPIC to repeat their
previous procedures is tantamount to doubting the agency's
performance of its statutorily-mandated tasks, over which they have
the necessary expertise, and implies that said DOE certification is
improper, a breach, allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the
procedures and tests already conducted on the WOPL because of the
fear and uncertainty on its safeness despite the finding of the DOE in
favor of its reopening, taking into consideration the occurrence of
numerous pipeline incidents worldwide. The dissent argues that the
precautionary principle should not be so strictly applied as to
unjustifiably deprive the public of the benefits of the activity to be
inhibited, and to unduly create other risks.
The dissent's contentions that the case is already moot and academic,
that the writ of kalikasan has already served its function, and that the
delay in the lifting of the TEPO may do more harm than good are
anchored on the mistaken premise that the precautionary principle was
applied in order to justify the order to the DOE and the FPIC for the
conduct of the various tests anew. The following reasons easily debunk
these arguments:
1. The precautionary principle is not applicable to the instant
case;
2. The DOE certification is not an absolute attestation as to the
WOPL's structural integrity and in fact imposes several
conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other
concerned agencies, proposed the activities to be conducted
preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's
structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for
Environmental Cases, on the Precautionary Principle, provides that "[
w ]hen there is 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."
According to the dissent, the directive for the repetition of the tests is
based on speculations, justified by the application of said principle.
This, however, is not the case. Nowhere did We apply the
precautionary principle in deciding the issue on the WOPL's structural
integrity.
The precautionary principle only applies when the link between the
cause, that is the human activity sought to be inhibited, and the effect,
that is the damage to the environment, cannot be established with full
scientific certainty. Here, however, such absence of a link is not an
issue. Detecting the existence of a leak or the presence of defects in
the WOPL, which is the issue in the case at bar, is different from
determining whether the spillage of hazardous materials into the
surroundings will cause environmental damage or will harm human
health or that of other organisms. As a matter of fact, the petroleum
leak and the harm that it caused to the environment and to the
residents of the affected areas is not even questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the
WOPL's compliance with pipeline structure standards so as to make it
fit for its purpose, a question of fact that is to be determined on the
basis of the evidence presented by the parties on the WOPL's actual
state. Hence, Our consideration of the numerous findings and
recommendations of the CA, the DOE, and the amici curiae on the
WOPL' s present structure, and not the cited pipeline incidents as the
dissent propounds.
Consider also the fact that it is the DOE itself that imposed several
conditions upon FPIC for the resumption of the operations of the
WOPL. This, coupled with the submission by the DOE of its proposed
activities and timetable, is a clear and unequivocal message coming
from the DOE that the WOPL's soundness for resumption of and
continued commercial operations is not yet fully determined. And it is
only after an extensive determination by the DOE of the pipeline's
actual physical state through its proposed activities, and not merely
through a short-form integrity audit,56that the factual issue on the
WOPL's viability can be settled. The issue, therefore, on the pipeline's
structural integrity has not yet been rendered moot and remains to be
subject to this Court's resolution. Consequently, We cannot say that
the DOE's issuance of the certification adverted to equates to the writ
of kalikasan being functus officio at this point.
The dissent is correct in emphasizing that We defer to the findings of
fact of administrative agencies considering their specialized knowledge
in their field. And We, as a matter of fact, acceded to the DOE' s
conclusions on the necessity of the conduct of the various activities
and tests enumerated in Sec. Petilla's letter to this Court dated August
5, 2014. Hence, Our directive for the DOE to immediately commence
the activities enumerated in said Letter, to determine the pipeline's
reliability, and to order its reopening should the DOE find that such is
proper.
The dissent also loses sight of the fact that the petition not only seeks
the checking of the WOPL's structural integrity, but also prays for the
rehabilitation of the areas affected by the leak, the creation of a special
trust fund, the imposition of liability upon the directors of FPIC, among
others. These issues, undoubtedly, are matters that are not addressed
by the DOE certification alone. Furthermore, these are issues that no
longer relate to the WOPL' s structure but to its maintenance and
operations, as well as to the residues of the incident. It will, thus, be
improper for Us to simply dismiss the petition on the basis solely of the
alleged resolution of only one of several issues, which purportedly
renders the issue on the WOPL' s soundness moot, without disposing
of the other issues presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the
purpose of making sure that the pipeline is commercially viable, is
better than hastily allowing its reopening without an extensive check on
its structural integrity when experience shows that there were and may
still be flaws in the pipeline. Even the DOE, the agency tasked to
oversee the supply and distribution of petroleum in the country, is well
aware of this and even recommended the checking of the patched
portions of the pipeline, among others. In this regard, the Court deems
it best to take the necessary safeguards, which are not similar to
applying the precautionary principle as previously explained, in order to
prevent a similar incident from happening in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We
note that under Sec. 1, Rule 5 of the Rules of Procedure for
Environmental Cases, a trust fund is limited solely for the purpose of
rehabilitating or restoring the environment. Said proviso pertinently
provides:
SEC. 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. (emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for
Environmental Cases expressly prohibits the grant of damages to
petitioners in a petition for the issuance of a writ of kalikasan, viz:
Section 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:
xxxx
(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.
A reading of the petition and the motion for partial reconsideration
readily reveals that the prayer is for the creation of a trust fund for
similar future contingencies. This is clearly outside the limited purpose
of a special trust fund under the Rules of Procedure for Environmental
Cases, which is to rehabilitate or restore the environment that has
presumably already suffered. Hence, the Court affirms with
concurrence the observation of the appellate court that the prayer is
but a claim for damages, which is prohibited by the Rules of Procedure
for Environmental Cases. As such, the Court is of the considered view
that the creation of a special trust fund is misplaced. The present ruling
on petitioners' prayer for the creation of a special trust fund in the
instant recourse, however, is without prejudice to the judgment/s that
may be rendered in the civil and/or criminal cases filed by petitioners
arising from the same incident if the payment of damages is found
warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective
directors and officers, the CA found FGC not liable under the TEPO
and, without prejudice to the outcome of the civil case (Civil Case No.
11-256, RTC, Branch 58 in Makati City) and criminal complaint
(Complaint-Affidavit for Reckless Imprudence, Office of the Provincial
Prosecutor of Makati City) filed against them, the individual directors
and officers of FPIC and FGC are not liable in their individual
capacities.
The Court will refrain from ruling on the finding of the CA that the
individual directors and officers of FPIC and FGC are not liable due to
the explicit rule in the Rules of Procedure for Environmental cases that
in a petition for a writ of kalikasan, the Court cannot grant the award of
damages to individual petitioners under Rule 7, Sec. 15(e) of the Rules
of Procedure for Environmental Cases. As duly noted by the CA, the
civil case and criminal complaint filed by petitioners against
respondents are the proper proceedings to ventilate and determine the
individual liability of respondents, if any, on their exercise of corporate
powers and the management of FPIC relative to the dire environmental
impact of the dumping of petroleum products stemming from the leak in
the WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the
FPIC and FGC officials which can, however, be properly resolved in
the civil and criminal cases now pending against them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation
(Re: Current Developments) with Omnibus Motion on the remediation
plan in Barangay Bangkal by directing the Inter-Agency Committee on
Environmental Health to submit its evaluation of the said plan prepared
by CH2M Philippines, Inc., for FPIC to strictly comply with the
stipulations embodied in the permits issued by the DENR, and to get a
certification from the DENR of its compliance thereto is well taken.
DENR is the government agency tasked to implement the state policy
of "maintaining a sound ecological balance and protecting and
enhancing the quality of the environment"57 and to "promulgate rules
and regulations for the control of water, air, and land pollution."58 It is
indubitable that the DENR has jurisdiction in overseeing and
supervising the environmental remediation of Barangay Bangkal, which
is adversely affected by the leak in the WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental Manifestation
about a recent possible leak in the pipeline, the CA appropriately found
no additional leak. However, due to the devastating effect on the
environs in Barangay Bangkal due to the 2010 leak, the Court finds it
fitting that the pipeline be closely and regularly monitored to obviate
another catastrophic event which will prejudice the health of the
affected people, and to preserve and protect the environment not only
for the present but also for the future generations to come.
Petitioner's January 10, 2013 Motion for Partial Recommendation of
the CA' s Report need not be discussed and given consideration. As
the CA' s Report contains but the appellate court's recommendation on
how the issues should be resolved, and not the adjudication by this
Court, there is nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with
Motion for Clarification, the matters contained therein have been
considered in the foregoing discussion of the primary issues of this
case. With all these, We need not belabor the other arguments raised
by the parties.
IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration
is hereby DENIED. The Motion for Reconsideration with Motion for
Clarification is PARTLY GRANTED. The Court of Appeals'
recommendations, embodied in its December 21, 2012 Report and
Recommendation, are hereby ADOPTED with the following
MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee
the strict implementation of the following activities:
A. Preparatory to the Test Run of the entire stretch of
the WOPL:
1) FPIC shall perform the following:
a. Continue submission of monitoring
charts, data/reading, accomplishment
reports, and project status for all related
activities/works. Respond to comments
and prepare for site inspection.
b. Continue gas testing along the right-
of-way using the monitoring wells or
boreholes. Prepare for inspection of
right-of-way and observation of gas
testing activities on monitoring wells
and boreholes.
c. Explain the process of the selection
of borehole location and identify those
located in pipeline bends, bodies of
water, highways, residential areas,
repaired portions of the pipelines, dents
and welded joints, as well other notable
factors, circumstances, or exposure to
stresses. d. Set up additional boreholes
and monitoring wells sufficient to cover
the entire stretch of the WOPL, the
number and location of which shall be
determined by the DOE.
e. Continue submitting status report to
the concerned government agency/ies
relating to "Project Mojica," or the on-
going pipeline segment realignment
activity being undertaken by FPIC to
give way to a flood control project of the
MMDA in the vicinity of Mojica St. and
Pres. Osmeña Highway, and prepare
for site inspection.
2) The DOE shall perform the following
undertakings:
a. Conduct onsite inspection of the
pipeline right-of-way, the area around
the WOPL and the equipment installed
underground or aboveground.
b. Review and check the condition of
the 22 patches reinforced with
Clockspring sleeves by performing the
following:
i. Determine the location of the
sleeves
ii. Review the procedure for the
repair of the sleeves
iii. Inspect the areas where the
affected portions of the WOPL
are located and which are easily
accessible.
c. Inspect onsite the cathodic protection
rectifier to check the following:
i. old and current readings
ii. the segment/s covered by the
cathodic protection system
iii. review the criteria for
prioritization of corrective action.
d. Observe and witness the
running/operation of the intelligent and
cleaning pigs.
 e. Check and calibrate the instruments
that will be used for the actual tests on
the pipeline, and validate the calibration
certificates of these instruments.
B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and
witness the launching and receiving of
the intelligent and cleaning pigs.
b. Demonstrate and observe the various
pressure and leakage tests, including
the following:
i. "Blocked-in pressure test" or
the pressure test conducted
while all the WOPL's openings
are blocked or closed off; and
ii. "In-operation test" or the
hourly monitoring of pressure
rating after the pipeline is filled
with dyed water and pressurized
at a specified rate.
c. Continue, inspect, and oversee the
current gas monitoring system, or the
monitoring of gas flow from the
boreholes and monitoring wells of the
WOPL.
d. Check the mass or volume balance
computation during WOPL test run by
conducting:
i. 30 days baseline data
generation
ii. Computational analysis and
monitoring of the data
generated.
II. After FPIC has undertaken the activities prescribed in the preceding
paragraph 1, the DOE shall determine if the activities and the results of
the test run warrant the re-opening of the WOPL. In the event that the
DOE is satisfied that the WOPL is safe for continued commercial
operations, it shall issue an order allowing FPIC to resume the
operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC
strictly complies with the following directives:
a. Continue implementation of its Pipeline Integrity
Management System (PIMS), as reviewed by the DOE,
which shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire
stretch of the WOPL, every two hours;
2. continued close monitoring of all the
boreholes and monitoring wells of the WOPL
pipeline;
3. regular periodic testing and maintenance
based on its PIMS; and
4. the auditing of the pipeline's mass input
versus mass output;
b. submit to the DOE, within ten (10) days of each
succeeding month, monthly reports on its compliance
with the above directives and any other conditions that
the DOE may impose, the results of the monitoring,
tests, and audit, as well as any and all activities
undertaken on the WOPL or in connection with its
operation. The concerned government agencies,
namely: the Industrial Technology Development
Institute (ITDI) and the Metals Industry Research and
 Development Center (MIRDC), both under the
Department of Science and Technology (DOST), the
Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources
(DENR), the Bureau of Design (BOD) of the
Department of Public Works and Highways (DPWH),
the University of the Philippines - National Institute of
Geological Science (UP-NI GS) and University of the
Philippines - Institute of Civil Engineering (UP-ICE), the
petitioners, intervenors and this Court shall likewise be
furnished by FPIC with the monthly reports. This shall
include, but shall not be limited to: realignment, repairs,
and maintenance works; and
G.R. No. 211010
c. continue coordination with the concerned
government agencies for the implementation of its VICTORIA SEGOVIA, RUEL LAGO, CLARIESSE JAMI CHAN,
projects.1âw phi 1
REPRESENTING THE CARLESS PEOPLE OF THE PHILIPPINES;
GABRIEL ANASTACIO, REPRESENTED BY HIS MOTHER GRACE
IV. Respondent FPIC is also DIRECTED to undertake and continue the ANASTACIO, DENNIS ORLANDOSANGALANG, REPRESENTED
remediation, rehabilitation and restoration of the affected Barangay BY HIS MOTHER MAY ALILI SANGALANG, MARIA PAULINA
Bangkal environment until full restoration of the affected area to its CASTANEDA, REPRESENTED BY HER MOTHERATRICIAANN
condition prior to the leakage is achieved. For this purpose, respondent CASTANEDA, REPRESENTING THE CHILDREN OF THE
FPIC must strictly comply with the measures, directives and permits PHILIPPINES AND CHILDREN OF THE FUTURE; AND RENATO
issued by the DENR for its remediation activities in Barangay Bangkal, PINEDA, JR., ARON KERR MENGUITO, MAY ALILI SANGALANG,
including but not limited to, the Wastewater Discharge Permit and AND GLYNDA BATHAN BATERINA, REPRESENTING
Permit to Operate. The DENR has the authority to oversee and CAROWNERS WHO WOULD RATHER NOT HA VE CARS IF GOOD
supervise the aforesaid activities on said affected barangay. PUBLIC TRANSPORTATION WERE SAFE, CONVENIENT,
ACCESSIBLE AND RELIABLE, Petitioners
vs
V. The Inter-Agency Committee on Environmental Health under the
THE CLIMATE CHANGE COMMISSION, REPRESENTED BY ITS
City Government of Makati shall SUBMIT to the DENR its evaluation of
CHAIRMAN, HIS EXCELLENCY BENIGNO S. AQUINO III, AND ITS
the Remediation Plan prepared by CH2M Hill Philippines, Inc. within
COMMISSIONERS MARY ANN LUCILLE SERING, HEHERSON
thirty (30) days from receipt hereof.
ALVAREZANDNADAREV SANO; DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC)
VI. Petitioners' prayer for the creation of a special trust fund to answer REPRESENTED BY ITS SECRETARY, HONORABLE JOSEPH
for similar contingencies in the future is DENIED. ABAYA; DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS
(DPWH) AND THE ROAD BOARD, REPRESENTED BY ITS
SO ORDERED. SECRETARY, HONORABLE ROGELIO SINGSON; DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT (DILG), REPRESENTED
BY ITS SECRETARY, HONORABLE MANUEL ROXAS;
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), REPRESENTED BY ITS SECRETARY, HONORABLE
RAMON PAJE; DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM), REPRESENTED BY ITS SECRETARY, HONORABLE
FLORENCIO ABAD; METROPOLITAN MANILA DEVELOPMENT
AUTHORITY (MMDA), REPRESENTED BY ITS CHAIRMAN,
FRANCIS TOLENTINO; DEPARTMENT OF AGRICULTURE (DA),
REPRESENTED BY ITS SECRETARY, HONORABLE PROCESO
ALCALA; AND JOHN DOES, REPRESENTING AS YET UNNAMED
LOCAL GOVERNMENT UNITS AND THEIR RESPECTIVE LOCAL
CHIEF EXECUTIVE, JURIDICAL ENTITIES, AND NATURAL
PERSONS WHO FAIL OR REFUSE TO IMPLEMENT THE LAW OR
COOPERATE IN THE IMPLEMENTATION OF THE LAW,
Respondents
DECISION
CAGUIOA, J.:
This is a petition for the issuance of writs of kalikasan and
continuing mandamus to compel the implementation of the following
environmental laws and executive issuances - Republic Act No. (RA)
97291 (Climate Change Act), and RA 87492 (Clean Air Act); Executive
Order No. 7743 (BO 774); AO 254, s. 20094 (AO 254); and
Administrative Order No. 171, s. 20075 (AO 171).
Accordingly, the Petitioners seek to compel: (a) the public respondents
to: (1) implement the Road Sharing Principle in all roads; (2) divide all
roads lengthwise, one-half (½) for all-weather sidewalk and bicycling,
the other half for Filipino-made transport vehicles; (3) submit a time-
bound action plan to implement the Road Sharing Principle throughout
the country; (b) the Office of the President, Cabinet officials and public
employees of Cabinet members to reduce their fuel consumption by
fifty percent (50%) and to take public transportation fifty percent (50%)
of the time; (c) Public respondent DPWH to demarcate and delineate
the road right-of-way in all roads and sidewalks; and (d) Public
respondent DBM to instantly release funds for Road Users' Tax.6
The Facts
To address the clamor for a more tangible response to climate change,
Former President Gloria Macapagal-Arroyo issued AO 171 which
created the Presidential Task Force on Climate Change (PTFCC) on
February 20, 2007. This body was reorganized through BO 774, which
designated the President as Chairperson, and cabinet secretaries as
members of the Task Force. EO 774 expressed what is now referred to
by the petitioners as the "Road Sharing Principle." Its Section 9(a)
reads:
Section 9. Task Group on Fossil Fuels. - (a) To reduce the
consumption of fossil fuels, the Department of Transportation and
Communications (DOTC) shall lead a Task Group to reform the
transportation sector. The new paradigm in the movement of men and
things must follow a simple principle: "Those who have less in wheels
must have more in road." For this purpose, the system shall favor
nonmotorized locomotion and collective transportation system
(walking, bicycling, and the man-powered mini-train).
In 2009, AO 254 was issued, mandating the DOTC (as lead agency for
the Task Group on Fossil Fuels or TGFF) to formulate a national
Environmentally Sustainable Transport Strategy (EST) for the
Philippines. The Road Sharing Principle is similarly mentioned, thus:
SECTION 4. Functions of the TGFF- In addition to the functions
provided in EO 774, the TGFF shall initiate and pursue the formulation
of the National EST Strategy for the Philippines.
Specifically, the TGFF shall perform the following functions:
(a) Reform the transport sector to reduce the consumption of fossil
fuels. The new paradigm in the movement of men and things must
follow a simple principle: "Those who have less in wheels must have
more in road." For this purpose, the system shall favor non-motorized
locomotion and collective transportation system (walking, bicycling,
and the manpowered mini-train).
xxxx
Later that same year, Congress passed the Climate Change Act. It
created the Climate Change Commission which absorbed the functions
of the PTFCC and became the lead policy-making body of the
government which shall be tasked to coordinate, monitor and evaluate
the programs and action plans of the government relating to climate
change.7
Herein petitioners wrote respondents regarding their pleas for
implementation of the Road Sharing Principle, demanding the reform of
the road and transportation system in the whole country within thirty
(30) days from receipt of the said letter - foremost, through the
bifurcation of roads and the reduction of official and government fuel
consumption by fifty percent (50%).8 Claiming to have not received a
response, they filed this petition.
The Petition
Petitioners are Carless People of the Philippines, parents, representing
their children, who in turn represent "Children of the Future, and Car-
owners who would rather not have cars if good public transportation
were safe, convenient, accessible, available, and reliable". They claim
that they are entitled to the issuance of the extraordinary writs due to
the alleged failure and refusal of respondents to perform an act
mandated by environmental laws, and violation of environmental laws
resulting in environmental damage of such magnitude as to prejudice
the life, health and property of all Filipinos.9
These identified violations10 include: (a) The government's violation of
"atmospheric trust" as provided under Article XI, Section 1 of the
Constitution, and thoughtless extravagance in the midst of acute public
want under Article 25 of the Civil Code for failure to reduce personal
and official consumption of fossil fuels by at least fifty percent
(50%); (b) DOTC and DPWH's failure to implement the Road Sharing
Principle under EO 774; (c) DA's failure to devote public open spaces
along sidewalks, roads and parking lots to sustainable urban farming
as mandated by Section 12(b)11 f EO 774; (d) DILG's failure to
coordinate with local government units (LGUs) to guide them on the
Road Sharing Principle under Section 9(g)12 of EO 774; (e) DENR's
failure to reduce air pollutant emissions; and lastly, (f) DBM's failure to
make available Road Users' Tax for purposes stated in Section 9(e)13 of
EO 774.
In gist, petitioners contend that respondents' failure to implement the
foregoing laws and executive issuances resulted in the continued
degradation of air quality, particularly in Metro Manila, in violation of the
petitioners' constitutional right to a balanced and healthful
ecology,14 and may even be tantamount to deprivation of life, and of life
sources or "land, water, and air" by the government without due
process of law.15 They also decry the "unequal" protection of laws in the
prevailing scheme, claiming that ninety-eight percent (98%) of Filipinos
are discriminated against by the law when the car-owning two percent
(2%) is given almost all of the road space and while large budgets are
allocated for construction and maintenance of roads, hardly any budget
is given for sidewalks, bike lanes and non-motorized transportation
systems.16
Respondents, through the Office of the Solicitor General, filed
their Comment seeking the outright dismissal of the petition for lack of
standing and failure to adhere to the doctrine of hierarchy of
courts.17 Moreover, respondents argue that petitioners are not entitled
to the reliefs prayed for.
Specifically, respondents assert that petitioners are not entitled to a
writ of kalikasan because they failed to show that the public
respondents are guilty of an unlawful act or omission; state the
environmental law/s violated; show environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants of
two or more cities; and prove that non- implementation of Road
Sharing Principle will cause environmental damage. Respondents
likewise assert that petitioners are similarly not entitled to a
Continuing Mandamus because: (a) there is no showing of a direct or
personal injury or a clear legal right to the thing demanded; (b) the writ
will not compel a discretionary act or anything not in a public officer's
duty to do (i.e. the manner by which the Road Sharing Principle will be
applied; and to compel DA to exercise jurisdiction over roadside lands);
and (c) DBM cannot be compelled to make an instant release of funds
as the same requires an appropriation made by law (Article VI, Section
29[1] of the Constitution) and the use of the Road Users' Tax (more
appropriately, the Motor Vehicle Users' Charge) requires prior approval
of the Road Board.18
In any event, respondents denied the specific violations alleged in the
petition, stating that they have taken and continue to take measures to
improve the traffic situation in Philippine roads and to improve the
environment condition - through projects and programs such as:
priority tagging of expenditures for climate change adaptation and
mitigation, the Integrated Transport System which is aimed to
decongest major thoroughfares, Truck Ban, Anti-Smoke Belching
Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban
Re-Greening Programs. These projects are individually and jointly
implemented by the public respondents to improve the traffic condition
and mitigate the effects of motorized vehicles on the
environment.19 Contrary to petitioners' claims, public respondents
assert that they consider the impact of the transport sector on the
environment, as shown in the Philippine National Implementation Plan
on Environment Improvement in the Transport Sector which targets air
pollution improvement actions, greenhouse gases emission mitigation,
and updating of noise pollution standards for the transport sector.
In response, petitioner filed their Reply, substantially reiterating the
arguments they raised in the Petition.
ISSUES
From the foregoing submissions, the main issues for resolution are:
1. Whether or not the petitioners have standing to file the petition;
2. Whether or not the petition should be dismissed for failing to adhere
to the doctrine of hierarchy of courts; and
3. Whether or not a writ of Kalikasan and/or
Continuing Mandamus should issue.
RULING
The petition must be dismissed.
Procedural Issues
Citing Section 1, Rule 7 of the Rules of Procedure for Environmental
Cases20 (RPEC), respondents argue that the petitioners failed to show
that they have the requisite standing to file the petition, being
representatives of a rather amorphous sector of society and without a
concrete interest or injury.21 Petitioners counter that they filed the suit
as citizens, taxpayers, and representatives; that the rules on standing
had been relaxed following the decision in Oposa v. Factoran;22 and
that, in any event, legal standing is a procedural technicality which the
Court may set aside in its discretion.23
The Court agrees with the petitioners' position. The RPEC did liberalize
the requirements on standing, allowing the filing of citizen's suit for the
enforcement of rights and obligations under environmental laws.24 This
has been confirmed by this Court's rulings in Arigo v.
Swift,25 and International Service for the Acquisition of Agri-BioTech
Applications, Inc. v. Greenpeace Southeast Asia
(Philippines).26 However, it bears noting that there is a difference
between a petition for the issuance of a writ of kalikasan, wherein it is
sufficient that the person filing represents the inhabitants prejudiced by
the environmental damage subject of the writ;27 and a petition for the
issuance of a writ of continuing mandamus, which is only available to
one who is personally aggrieved by the unlawful act or omission. 28
Respondents also seek the dismissal of the petition on the ground that
the petitioners failed to adhere to the doctrine of hierarchy of courts,
reasoning that since a petition for the issuance of a writ
of kalikasan must be filed with the Supreme Court or with any of the
stations of the Court of Appeals,29 then the doctrine of hierarchy of
courts is applicable.30 Petitioners, on the other hand, cite the same
provision and argue that direct recourse to this Court is available, and
that the provision shows that the remedy to environmental damage
should not be limited to the territorial jurisdiction of the lower courts.31
The respondents' argument does not persuade. Under the RPEC, the
writ of kalikasan is an extraordinary remedy covering environmental
damage of such magnitude that will prejudice the life, health or
property of inhabitants in two or more cities or provinces. It is designed
for a narrow but special purpose: to accord a stronger protection for
environmental rights, aiming, among others, to provide a speedy and
effective resolution of a case involving the violation of one's
constitutional right to a healthful and balanced ecology that transcends
political and territorial boundaries, and to address the potentially
exponential nature of large-scale ecological threats.32 At the very least,
the magnitude of the ecological problems contemplated under the
RPEC satisfies at least one of the exceptions to the rule on hierarchy
of courts, as when direct resort is allowed where it is dictated by public
welfare. Given that the RPEC allows direct resort to this Court,33 it is
1âwphi1
ultimately within the Court's discretion whether or not to accept
petitions brought directly before it.
Requisites for issuance of Writs of
Kalikasan and Continuing
Mandamus
We find that the petitioners failed to establish the requisites for the
issuance of the writs prayed for.
For a writ of kalikasan to issue, the following requisites must concur:
1. there is an actual or threatened violation of the constitutional right to
a balanced and healthful ecology;
2. the actual or threatened violation arises from an unlawful act or
omission of a public official or employee, or private individual or entity;
and
3. the actual or threatened violation involves or will lead to an
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.34
It is well-settled that a party claiming the privilege for the issuance of a
writ of kalikasan has to show that a law, rule or regulation was violated
or would be violated.35
In this case, apart from repeated invocation of the constitutional right to
health and to a balanced and healthful ecology and bare allegations
that their right was violated, the petitioners failed to show that public
respondents are guilty of any unlawful act or omission that constitutes
a violation of the petitioners' right to a balanced and healthful ecology.
While there can be no disagreement with the general propositions put
forth by the petitioners on the correlation of air quality and public
health, petitioners have not been able to show that respondents are
guilty of violation or neglect of environmental laws that causes or
contributes to bad air quality. Notably, apart from bare allegations,
petitioners were not able to show that respondents failed to execute
any of the laws petitioners cited. In fact, apart from adducing expert
testimony on the adverse effects of air pollution on public health, the
petitioners did not go beyond mere allegation in establishing the
unlawful acts or omissions on the part of the public respondents that
have a causal link or reasonable connection to the actual or threatened
violation of the constitutional right to a balanced and healthful ecology
of the magnitude contemplated under the Rules, as required of
petitions of this nature.36
Moreover, the National Air Quality Status Report for 2005-2007
(NAQSR) submitted by the petitioners belies their claim that the DENR
failed to reduce air pollutant emissions - in fact, the NAQSR shows that
the National Ambient Total Suspended Particulates (TSP) value used
to determine air quality has steadily declined from 2004 to 2007,37and
while the values still exceed the air quality guideline value, it has
remained on this same downward trend until as recently as 2011.38
On the other hand, public respondents sufficiently showed that they did
not unlawfully refuse to implement or neglect the laws, executive and
administrative orders as claimed by the petitioners. Projects and
programs that seek to improve air quality were undertaken by the
respondents, jointly and in coordination with stakeholders, such as:
priority tagging of expenditures for climate change adaptation and
mitigation, the Integrated Transport System which is aimed to
decongest major thoroughfares, Truck Ban, Anti-Smoke Belching
Campaign, Anti-Colorum, Mobile Bike Service Programs, and Urban
Re-Greening Programs.
In fact, the same NAQSR submitted by the petitioners show that the
DENR was, and is, taking concrete steps to improve national air
quality, such as information campaigns, free emission testing to
complement the anti-smoke-belching program and other programs to
reduce emissions from industrial smokestacks and from open burning
of waste.39 The efforts of local governments and administrative regions
in conjunction with other · executive agencies and stakeholders are
also outlined.40
Similarly, the writ of continuing mandamus cannot issue.
Rule 8, Section 1 of the RPEC lays down the requirements for a
petition for continuing mandamus as follows:
RULES
WRIT OF CONTINUING MANDAMUS
SECTION 1. Petition for continuing mandamus.-When any agency or
instrumentality of the government or officer thereof unlawfully neglects
the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a
right therein, or unlawfully excludes another from the use or enjoyment
of such right and there is no other plain, speedy and adequate remedy
in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or
series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to
perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of non-
forum shopping.
First, the petitioners failed to prove direct or personal injury arising from
acts attributable to the respondents to be entitled to the writ. While the
1âwphi1
requirements of standing had been liberalized in environmental cases,
the general rule of real party-in-interest applies to a petition for
continuing mandamus.41
Second, the Road Sharing Principle is precisely as it is denominated -
a principle. It cannot be considered an absolute imposition to encroach
upon the province of public respondents to determine the manner by
which this principle is applied or considered in their policy
decisions. Mandamus lies to compel the performance of duties that are
purely ministerial in nature, not those that are discretionary,42 and the
official can only be directed by mandamus to act but not to act one way
or the other. The duty being enjoined in mandamus must be one
according to the terms provided in the law itself. Thus, the recognized
rule is that, in the performance of an official duty or act involving
discretion, the corresponding official can only be directed
by mandamus to act, but not to act one way or the other.43
This Court cannot but note that this is precisely the thrust of the petition
- to compel the respondents to act one way to implement the Road
Sharing Principle - to bifurcate all roads in the country to devote half to
sidewalk and bicycling, and the other to Filipino-made transport - when
there is nothing in EO 774, AO 254 and allied issuances that require
that specific course of action in order to implement the same. Their
good intentions notwithstanding, the petitioners cannot supplant the
executive department's discretion with their own through this petition
for the issuance of writs of kalikasan and continuing mandamus.
In this case, there is no showing of unlawful neglect on the part of the
respondents to perform any act that the law specifically enjoins as a
duty - there being nothing in the executive issuances relied upon by the
petitioners that specifically enjoins the bifurcation of roads to
implement the Road Sharing Principle. To the opposite, the
respondents were able to show that they were and are actively
implementing projects and programs that seek to improve air quality. 1âw phi1
At its core, what the petitioners are seeking to compel is not the
performance of a ministerial act, but a discretionary act - the manner of
implementation of the Road Sharing Principle. Clearly, petitioners'
preferred specific course of action (i.e. the bifurcation of roads to
devote for all-weather sidewalk and bicycling and Filipino-made
transport vehicles) to implement the Road Sharing Principle finds no
textual basis in law or executive issuances for it to be considered an
act enjoined by law as a duty, leading to the necessary conclusion that
the continuing mandamus prayed for seeks not the implementation of
an environmental law, rule or regulation, but to control the exercise of
discretion of the executive as to how the principle enunciated in an
executive issuance relating to the environment is best implemented.
Clearly, the determination of the means to be taken by the executive in
implementing or actualizing any stated legislative or executive policy
relating to the environment requires the use of discretion. Absent a
showing that the executive is guilty of "gross abuse of discretion, this priority tagging and tracking is cascaded down to the local budget
manifest injustice or palpable excess of authority,"44 the general rule management of local government units.49
applies that discretion cannot be checked via this petition for
continuing mandamus. Hence, the continuing mandamus cannot Other causes of action
issue.1âw phi 1

As previously discussed, the petitioners' failure to show any violation

Road Users' Tax on the part of the respondents renders it unnecessary to rule on other
allegations of violation that the petitioners rely upon as causes of
Finally, petitioners seek to compel DBM to release the Road Users' action against the public respondents.
Tax to fund the reform of the road and transportation system and the
implementation of the Road Sharing Principle. In fine, the allegations and supporting evidence in the petition fall short
in showing an actual or threatened violation of the petitioners'
It bears clarifying that the Road Users' Tax mentioned in Section 9(e) constitutional right to a balanced and healthful ecology arising from an
of EO 774, apparently reiterated in Section 5 of AO 254 is the Special unlawful act or omission by, or any unlawful neglect on the part of, the
Vehicle Pollution Control Fund component of the Motor Vehicle Users' . respondents that would warrant the issuance of the writs prayed for.
Charge ("MVUC') imposed on owners of motor vehicles in RA 8794,
otherwise known as the Road Users' Tax Law. By the express WHEREFORE, the petition is DISMISSED. SO ORDERED.
provisions of the aforementioned law, the amounts in the special trust
accounts of the MVUC are earmarked solely and used exclusively (1)
for road maintenance and the improvement of the road drainage, (2)
for the installation of adequate and efficient traffic lights and road
safety devices, and (3) for the air pollution control, and their utilization
are subject to the management of the Road Board.45 Verily, the
petitioners' demand for the immediate and unilateral release of the
Road Users' Tax by the DBM to support the petitioners'
operationalization of this Road Sharing Principle has no basis in law.
The executive issuances relied upon by the petitioner do not rise to the
level of law that can supplant the provisions of RA 8794 that require
the approval of the Road Board for the use of the monies in the trust
fund. In other words, the provisions on the release of funds by the DBM
as provided in EO 774 and AO 254 are necessarily subject to the
conditions set forth in RA 8794. Notably, RA 9729, as amended by RA
10174, provides for the establishment for the People's Survival
Fund46 that may be tapped for adaptation activities, which similarly
require approval from the PSF Board.47

That notwithstanding, the claim made by the petitioners that hardly any
budget is allotted to mitigating environmental pollution is belied by the
priority given to programs aimed at addressing and mitigating climate
change that the DBM and the CCC had been tagging and tracking as
priority expenditures since 2013.48 With the coordination of the DILG,