Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R No. 187167 August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE,
JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA,
JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE,
VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO
III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY
KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO,
JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK
TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS
SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER
VANGUARDIA, and MARCELINO VELOSO III, Petitioners,

vs.

HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
Respondents.

DECISION

CARPIO, J.:

The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of
nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States
parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to
fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968
(Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines
around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the
extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago and classified adjacent
territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands"
whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two
principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of
the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying
the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14
To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it
excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS
III’s framework of regime of islands to determine the maritime zones of the KIG and the Scarborough
Shoal.

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

Respondents also question the normative force, under international law, of petitioners’ assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters
found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality
of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

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

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because
the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16
occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners’
locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case
which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing
to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more
direct and specific interest" to bring the suit, thus satisfying one of the requirements for granting
citizenship standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance
of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on
the part of respondents and resulting prejudice on the part of petitioners.18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari
and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of
acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of
statutes which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of
the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Country’s

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at
the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that
from the Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends
hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area
delineated in the Treaty of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic
zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23
UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the world’s oceans and submarine areas, recognizing coastal
and archipelagic States’ graduated authority over a limited span of waters and submarine lands along
their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn
in accordance with article 47. (Emphasis supplied)

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

Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters
within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still
have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of
the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs
of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing
multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s
terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on general international law.26

RA 9522’s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines’ Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory
renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this
purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

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

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

Internal or archipelagic waters 166,858 171,435

Territorial Sea 274,136 32,106

Exclusive Economic Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines
that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to
text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough
Shoal:

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

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

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

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach
of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which states: "The drawing of such
baseline shall not depart to any appreciable extent from the general configuration of the archipelago."
So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal,
hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim
them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the
orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys.
Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para
lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the archipelago.34
(Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits.1avvphi1 The need
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits
of its maritime zones including the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some
technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is
140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the
baselines system. This will enclose an additional 2,195 nautical miles of water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic
survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to
Palawan were later found to be located either inland or on water, not on low-water line and drying reefs
as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of
the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is above water at high tide," such as
portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their
own applicable maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided
in this Act is without prejudice to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to
the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as

"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the
body of water lying landward of the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines
drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or
distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.

xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of
its sovereignty over such waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass legislation
designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed,
bills drawing nautical highways for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State
can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance
with customary international law without risking retaliatory measures from the international
community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal
States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic waters
under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles

and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article
II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable
constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution. Although
Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II
as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis
maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States
that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to
pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this
Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to
freely enter and exploit the resources in the waters and submarine areas around our archipelago; and
second, it weakens the country’s case in any international dispute over Philippine maritime space. These
are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of
the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.
Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010

April 28, 2010

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

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 Japan8 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,30 which
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.65 However, 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 facto
impunity 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.

Republic of the Philippines

SUPREME COURT

Baguio City

EN BANC

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,

vs.

COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing
order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices – choices we would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about important questions of public
policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands
of morality. In many cases, where moral convictions are concerned, harmony among those theoretically
opposed is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what
is moral are indispensable and yet at the same time powerless to create agreement. This Court
recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is
better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of
the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied
with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.6 Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their

sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more than
one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use
into that which is against nature: And likewise also the men, leaving the natural use of the woman,
burned in their lust one toward another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of
those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement
to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides
that ‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty
of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies,
lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have
not violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the
youth." As an agency of the government, ours too is the State’s avowed duty under Section 13, Article II
of the Constitution to protect our youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while
three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo
T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking
for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed
sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list
race. But that is not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-
list system is a tool for the realization of aspirations of marginalized individuals whose interests are also
the nation’s – only that their interests have not been brought to the attention of the nation because of
their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its application for accreditation under
the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental
right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the
social or legal equality of homosexual relations," as in the case of race or religion or belief.
xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither
is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into
society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F: "Consensual partnerships or relationships by
gays and lesbians who are already of age’ It is further indicated in par. 24 of the Petition which waves for
the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000.
Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x
x which shocks, defies or disregards decency or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions
and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12
Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in
order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January
12, 2010, effective immediately and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil
and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted
on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of the Philippines’
international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
petitioner’s application for registration since there was no basis for COMELEC’s allegations of
immorality. It also opined that LGBTs have their own special interests and concerns which should have
been recognized by the COMELEC as a separate classification. However, insofar as the purported
violations of petitioner’s freedom of speech, expression, and assembly were concerned, the OSG
maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It
also argued for the first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged
its national existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is
neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the
sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only
those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution
and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that
it had nationwide existence through its members and affiliate organizations. The COMELEC claims that
upon verification by its field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when
it said that it or any of its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at
worst, a belated afterthought, a change in respondent’s theory, and a serious violation of petitioner’s
right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner
alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella
organization with affiliates around the Philippines composed of the following LGBT networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

§ Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings
are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s
principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated
allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang
Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941
or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or
lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of neutrality."25 We thus find that it was
grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend,
instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public
order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise,
if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because
it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have religious opinions
and moral codes with a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven.
Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion
clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests
but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling
state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into generally accepted public morals. The
COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because
of the danger it poses to the people especially the youth. Once it is recognized by the government, a
sector which believes that there is nothing wrong in having sexual relations with individuals of the same
gender is a bad example. It will bring down the standard of morals we cherish in our civilized society.
Any society without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind
this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall
that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly transplanted into the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that "there should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the "straights" and the gays."
Certainly this is not the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection
is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority to regulate matters
concerning morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of
an argument or another, without bothering to go through the rigors of legal reasoning and explanation.
In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the
Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a
mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings
and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to
justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as
a class, not because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person
be denied equal protection of the laws," courts have never interpreted the provision as an absolute
prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar
persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes in the same place and
in like circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists
to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even
if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here
– that is, moral disapproval of an unpopular minority – is not a legitimate state interest that is sufficient
to satisfy rational basis review under the equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a
disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does not imply that any other law distinguishing between
heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the purposes of the equal protection
clause.38 We are not prepared to single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade
society of the validity of its position through normal democratic means.39 It is in the public square that
deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance. Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies – including protection of religious freedom "not only for a minority, however
small – not only for a majority, however large – but for each of us" – the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better
reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this
country. It follows that both expressions concerning one’s homosexuality and the activity of forming a
political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception
that homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41
European and United Nations judicial decisions have ruled in favor of gay rights claimants on both
privacy and equality grounds, citing general privacy and equal protection provisions in foreign and
international texts.42 To the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence
on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition
of a particular expression of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its
vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a
political party may campaign for a change in the law or the constitutional structures of a state if it uses
legal and democratic means and the changes it proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or
the majority of the population.44 A political group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs
and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of
the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and
express that view. However, as far as this Court is concerned, our democracy precludes using the
religious or moral views of one part of the community to exclude from consideration the values of other
members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public
opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and
we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then
there has been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely
take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the
right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-
list system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal
basis in the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international
human rights law, in particular, has grown dynamically in its attempt to bring about a more just and
humane world order. For individuals and groups struggling with inadequate structural and governmental
support, international human rights norms are particularly significant, and should be effectively
enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards
of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to
electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation
is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR
Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to
include "sexual orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various international
agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.

Likewise, the ICCPR 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:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at 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;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public
Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that citizens have an effective
opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on
the consent of the people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that person's candidacy. States
parties should indicate and explain the legislative provisions which exclude any group or category of
persons from elective office.50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect
to the Philippines’ international law obligations, the blanket invocation of international law is not the
panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51
which petitioner declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of Justice.52
Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be added
to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a
much broader context of needs that identifies many social desires as rights in order to further claims
that international law obliges states to sanction these innovations. This has the effect of diluting real
human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are
no longer controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated
by various international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by
the "soft law" nomenclature, i.e., international law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of which amount to no more than well-
meaning desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in
opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge
that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The
Commission on Elections is directed to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

EN BANC
G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE
ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE
PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE,
HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G. DOMINGO, EDGARDO
CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL
LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners,

vs.

OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, Respondents.

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of
the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence
in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the Statute.2 The Statute
was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature
until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the
Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to
the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.4

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary
and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed
copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on
the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose
of a treaty when they have signed the treaty prior to ratification unless they have made their intention
clear not to become parties to the treaty.5

The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy
of courts. On the substantive issue raised by petitioners, respondents argue that the executive
department has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed 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.6 We have held that to be given due course, a petition for mandamus must
have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or
person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every
case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.7 The Court will exercise its power of
judicial review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is
being challenged. The term "interest" is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the
Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical
entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting
the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition,
and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law
who are suing as taxpayers.

The question in standing is whether a party has 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.10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they have sustained or will sustain a direct
injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens against human rights violations
and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "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."11 Thus, 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. The
petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered
into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive
branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator
Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the
Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by
a member of the Philippine Mission to the United Nations even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country’s sole representative with foreign nations.12 As the
chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations.13 In the realm of treaty-making, the President has
the sole authority to negotiate with other states.

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. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members
of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide
a check on the executive in the field of foreign relations.14 By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity and growth.15

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean
that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of
the instruments of ratification. The treaty may then be submitted for registration and publication under
the U.N. Charter, although this step is not essential to the validity of the agreement as between the
parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to
come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the
state in cases where ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse to be
bound by it should they find it inimical to their interests. It is for this reason that most treaties are made
subject to the scrutiny and consent of a department of the government other than that which
negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.16 [emphasis supplied]

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25,
1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for ratification. After
the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The
domestic requirements for the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be required by
the Senate, together with a certified true copy of the ratification instrument, shall accompany the
submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with
the provision of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the
treaty which it has signed is without basis. The signature does not signify the final consent of the state to
the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification,
acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty
are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the
state’s representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
the other state would be justified in taking offense.19

It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf
is a serious step that should not be taken lightly,22 such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The
Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC
G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,

vs.

HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,
respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's
milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom.
The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk.
But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said executive
agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by
virtue of the legislative powers granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition
and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents and children, are informed of the
advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in
violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19,
2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations
(RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of
the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR
is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in
restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global
Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the
Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members. This view
fuses the legal identity of an association with that of its members. An association has standing to file suit
for its workers despite its lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.

xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members,
because it and its members are in every practical sense identical. x x x The respondent [association] is
but the medium through which its individual members seek to make more effective the expression of
their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an
association has the legal personality to represent its members because the results of the case will affect
their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed "to represent directly or through approved representatives the
pharmaceutical and health care industry before the Philippine Government and any of its agencies, the
medical professions and the general public."8 Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical
and health care industry. Petitioner is duly authorized9 to take the appropriate course of action to bring
to the attention of government agencies and the courts any grievance suffered by its members which
are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation
to represent the entire industry, would be remiss in its duties if it fails to act on governmental action
that would affect any of its industry members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be considered as a real party-
in-interest which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are
part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending
and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only
the Milk Code but also various international instruments10 regarding infant and young child nutrition. It
is respondents' position that said international instruments are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are provided with services and nutrition in connection
with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes are the
ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either by
transformation or incorporation.11 The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of
the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or
conventional international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-
thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law
through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of
law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point
that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms
of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The
classical formulation in international law sees those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary

international law which are binding on all states,17 i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and
pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also
been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a primary source of
international law because they have the "character of jus rationale" and are "valid through all kinds of
human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law because they are "basic to
legal systems generally" and hence part of the jus gentium. These principles, he believes, are established
by a process of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law principle
provides a just and acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two
basic elements of custom: the material factor, that is, how states behave, and the psychological or
subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes
several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why
states behave the way they do. Do states behave the way they do because they consider it obligatory to
behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form
of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.22
(Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the
1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power
to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27 and to "make recommendations to members with
respect to any matter within the competence of the Organization."28 The legal effect of its regulations,
as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states
thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to
any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall
be required for the adoption of such conventions or agreements, which shall come into force for each
Member when accepted by it in accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the
Health Assembly of a convention or agreement, take action relative to the acceptance of such
convention or agreement. Each Member shall notify the Director-General of the action taken, and if it
does not accept such convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to
the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and
quarantine requirements and other procedures designed to prevent the international spread of disease;
(b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with respect to the safety,
purity and potency of biological, pharmaceutical and similar products moving in international
commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due
notice has been given of their adoption by the Health Assembly except for such Members as may notify
the Director-General of rejection or reservations within the period stated in the notice. (Emphasis
supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with
respect to any matter within the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come
into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment on a
health issue of the collective membership of the highest international body in the field of health."29
Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the
International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis
supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-
fourth World Health Assembly the text of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to recommendations made
to it by the Organization, and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member
states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what
has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is
the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements
and promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and
practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III
of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-binding
norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of
the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the
mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid
means of norm creation, in order "to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO member states, it
provides an excellent example of the power of "soft law" in international relations. International lawyers
typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles,
and practices that influence state behavior-"soft law." WHO has during its existence generated many
soft law norms, creating a "soft law regime" in international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for
improved international cooperation on infectious diseases. These resolutions clearly define WHO
member states' normative duty to cooperate fully with other countries and with WHO in connection
with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful
politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and
enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of
general and consistent state practice on infectious disease surveillance and outbreak response, perhaps
crystallizing eventually into customary international law on infectious disease prevention and control.41

In the Philippines, the executive department implemented certain measures recommended by WHO to
address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003
and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and
agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said resolutions
had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be

established that such rule is being followed by states because they consider it obligatory to comply with
such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the
absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall
define the national health policy and implement a national health plan within the framework of the
government's general policies and plans, and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion
of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national
health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No.
2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy
guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six months; (3) micronutrient
supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding
in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such
health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising and
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of
the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to
"young children" or those from ages two years old and beyond:

MILK CODE
RIRR

WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to
protect and promote breastfeeding and to inform the public about the proper use of breastmilk
substitutes and supplements and related products through adequate, consistent and objective
information and appropriate regulation of the marketing and distribution of the said substitutes,
supplements and related products;

SECTION 4(e). "Infant" means a person falling within the age bracket of 0-12 months.

Section 2. Purpose – These Revised Rules and Regulations are hereby promulgated to ensure the
provision of safe and adequate nutrition for infants and young children by the promotion, protection
and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk
supplements and related products when these are medically indicated and only when necessary, on the
basis of adequate information and through appropriate marketing and distribution.

Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to the age
of three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk
in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and
declares that "there is no substitute nor replacement for breastmilk":

MILK CODE

RIRR

WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to
protect and promote breastfeeding and to inform the public about the proper use of breastmilk
substitutes and supplements and related products through adequate, consistent and objective
information and appropriate regulation of the marketing and distribution of the said substitutes,
supplements and related products;
Section 4. Declaration of Principles – The following are the underlying principles from which the revised
rules and regulations are premised upon:

a. Exclusive breastfeeding is for infants from 0 to six (6) months.

b. There is no substitute or replacement for breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and
promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for
infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13
of the RIRR, which provides for a "total effect" in the promotion of products within the scope of the
Code, is vague:

MILK CODE

RIRR

SECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for
products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.

Section 4. Declaration of Principles – The following are the underlying principles from which the revised
rules and regulations are premised upon:

xxxx

f. Advertising, promotions, or sponsor-ships of infant formula, breastmilk substitutes and other related
products are prohibited.
Section 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and activities
for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall
be allowed, because they tend to convey or give subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as
well as related products covered within the scope of this Code.

Section 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in
the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total
effect" should not directly or indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better
health to the baby or other such exaggerated and unsubstantiated claim.

Section 15. Content of Materials. - The following shall not be included in advertising, promotional and
marketing materials:

a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or
superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In
this connection, no pictures of babies and children together with their mothers, fathers, siblings,
grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant
formula and breastmilk supplements;

b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing
breastmilk substitutes or milk supplements;

c. Pictures or texts that idealize the use of infant and milk formula.

Section 16. All health and nutrition claims for products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE
RIRR

SECTION 10. Containers/Label. –

(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from it,
and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for
its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.

Section 26. Content – Each container/label shall contain such message, in both Filipino and English
languages, and which message cannot be readily separated therefrom, relative the following points:

(a) The words or phrase "Important Notice" or "Government Warning" or their equivalent;

(b) A statement of the superiority of breastfeeding;

(c) A statement that there is no substitute for breastmilk;

(d) A statement that the product shall be used only on the advice of a health worker as to the need for
its use and the proper methods of use;

(e) Instructions for appropriate prepara-tion, and a warning against the health hazards of inappropriate
preparation; and

(f) The health hazards of unnecessary or improper use of infant formula and other related products
including information that powdered infant formula may contain pathogenic microorganisms and must
be prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR
totally prohibits such activity:

MILK CODE

RIRR

SECTION 7. Health Care System. –

(b) No facility of the health care system shall be used for the purpose of promoting infant formula or
other products within the scope of this Code. This Code does not, however, preclude the dissemination
of information to health professionals as provided in Section 8(b).

SECTION 8. Health Workers. -

(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottle-feeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section 5(b).

Section 22. No manufacturer, distributor, or representatives of products covered by the Code shall be
allowed to conduct or be involved in any activity on breastfeeding promotion, education and production
of Information, Education and Communication (IEC) materials on breastfeeding, holding of or
participating as speakers in classes or seminars for women and children activities and to avoid the use of
these venues to market their brands or company names.

SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and
continuing education of health professionals; RIRR absolutely forbids the same.

MILK CODE

RIRR

SECTION 8. Health Workers –

(e) Manufacturers and distributors of products within the scope of this Code may assist in the research,
scholarships and continuing education, of health professionals, in accordance with the rules and
regulations promulgated by the Ministry of Health.

Section 4. Declaration of Principles –

The following are the underlying principles from which the revised rules and regulations are premised
upon:

i. Milk companies, and their representatives, should not form part of any policymaking body or entity in
relation to the advancement of breasfeeding.

SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be
allowed to conduct or be involved in any activity on breastfeeding promotion, education and production
of Information, Education and Communication (IEC) materials on breastfeeding, holding of or
participating as speakers in classes or seminars for women and children activities and to avoid the use of
these venues to market their brands or company names.
SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health
workers to promote, protect and support breastfeeding and appropriate infant and young child feeding.
Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No
assistance, support, logistics or training from milk companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE

RIRR

SECTION 6. The General Public and Mothers. –

(f) Nothing herein contained shall prevent donations from manufacturers and distributors of products
within the scope of this Code upon request by or with the approval of the Ministry of Health.

Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and
covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited.

Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of products,
equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by
milk companies and their agents, representatives, whether in kind or in cash, may only be coursed
through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or
otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE

RIRR
Section 46. Administrative Sanctions. – The following administrative sanctions shall be imposed upon
any person, juridical or natural, found to have violated the provisions of the Code and its implementing
Rules and Regulations:

a) 1st violation – Warning;

b) 2nd violation – Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the
offending product;

c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and suspension of the Certificate of Product Registration
(CPR);

d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate
(LTO) for one year;

e) 5th and succeeding repeated violations – Administrative Fine of One Million (P1,000,000.00) Pesos,
the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO)
of the company concerned, including the blacklisting of the company to be furnished the Department of
Budget and Management (DBM) and the Department of Trade and Industry (DTI);

f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for
every day the violation continues after having received the order from the IAC or other such appropriate
body, notifying and penalizing the company for the infraction.

For purposes of determining whether or not there is "repeated" violation, each product violation
belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of
the concerned milk company and shall not be based on the specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months
old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related thereto, of the
following products: breastmilk substitutes, including infant formula; other milk products, foods and
beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food,
and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to
their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An
infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of
this group of infants or children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being
marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not
suitable for that purpose." This section conspicuously lacks reference to any particular age-group of
children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12
months. In other words, breastmilk substitutes may also be intended for young children more than 12
months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect
and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by
children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should
not be studied as detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR
also states that information and educational materials should include information on the proper use of
infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk
substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with
each other.

To resolve the question of whether the labeling requirements and advertising regulations under the
RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers
of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular
under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter
precludes the need to further discuss it..48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively
new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was
already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof
charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people and especially the inculcation of knowledge as
to the proper care of infants and the methods of preventing and combating dangerous communicable
diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy
pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the
right to health of the people and instill health consciousness among them."52 To that end, it was
granted under Section 3 of the Administrative Code the power to "(6) propagate health information and
educate the population on important health, medical and environmental matters which have health
implications."53

When it comes to information regarding nutrition of infants and young children, however, the Milk Code
specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure
that there is adequate, consistent and objective information on breastfeeding and use of breastmilk
substitutes, supplements and related products; and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring –

xxxx

(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of
the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and
functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this
Code and the accomplishment of its purposes and objectives.

xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment
of the purposes and objectives of this Code.

SECTION 5. Information and Education –

(a) The government shall ensure that objective and consistent information is provided on infant feeding,
for use by families and those involved in the field of infant nutrition. This responsibility shall cover the
planning, provision, design and dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis-
à-vis breastmilk substitutes, supplement and related products, in the following manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially
or home-prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes.

SECTION 8. Health Workers –

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such information
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section 5(b).
SECTION 10. Containers/Label –

(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.

xxxx

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that
would reach pregnant women, mothers of infants, and health professionals and workers in the health
care system is restricted to scientific and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding
breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass
the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the
Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution of
breastmilk substitutes, to wit:

SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision of safe and adequate
nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper use of
breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of adequate
information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related to
breastmilk substitutes, including infant formula, and to information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational materials shall
not use any picture or text which may idealize the use of breastmilk substitutes and should include
information on the health hazards of unnecessary or improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine
advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health professionals but
such information should be restricted to factual and scientific matters and shall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that would
discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling
and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a
statement that powdered infant formula may contain pathogenic microorganisms and must be prepared
and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for products
within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the
infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to
wit:

SECTION 8. Health workers -

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such information
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that
there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such
information would be inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to health workers
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive
application of Section 8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of their products the exact opposite message.
That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by
mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the
same time giving the government control over planning, provision, design, and dissemination of
information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is
not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and
deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260
of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of
the Milk Code which reads:

SECTION 5. x x x
xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: x x x (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The
buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair
warning about the likelihood of pathogenic microorganisms being present in infant formula and other
related products when these are prepared and used inappropriately.

Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic microorganisms is in
accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for
products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an
IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
members is hereby created:

Minister of Health

-------------------

Chairman

Minister of Trade and Industry

-------------------

Member

Minister of Justice

-------------------

Member

Minister of Social Services and Development

-------------------

Member

The members may designate their duly authorized representative to every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written,
audio or visual, on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication,
distribution, exhibition and broadcast of, all advertising promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as
well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the implementation of
Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and

activities for breastmilk substitutes intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give subliminal messages or impressions that
undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related
products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority
given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6
thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to
dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during
the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational,
viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an
absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO
2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for
breast milk substitutes intended for infants and young children up to 24 months shall be allowed
because this is the standard they tend to convey or give subliminal messages or impression undermine
that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12,
provides for the inter agency committee that is empowered to process and evaluate all the advertising
and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
advertisement and the promotions of breastfeeding milk substitutes.

xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the
Inter-Agency Committee that processes and evaluates because there may be some information
dissemination that are straight forward information dissemination. What the AO 2006 is trying to
prevent is any material that will undermine the practice of breastfeeding, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules
and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect rule as well as the
content of materials under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-
Agency Committee is under the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk
substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes
intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate
some advertising and promotional materials, subject to the standards that we have stated earlier, which
are- they should not undermine breastfeeding, Your Honor.
xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has
that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute
regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising
and promotions will not undermine breastmilk and breastfeeding, Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the approval
or rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk
Code, said provision must be related to Section 6 thereof which in turn provides that the rules and
regulations must be "pursuant to the applicable standards provided for in this Code." Said standards are
set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy
reference, are quoted hereunder:

SECTION 5. Information and Education –

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially
or home-prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes.

xxxx

SECTION 8. Health Workers. –

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall
also include the information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label –

(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from it,
and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for
its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of
the Milk Code states that:

SECTION 5. Information and Education –

(a) The government shall ensure that objective and consistent information is provided on infant feeding,
for use by families and those involved in the field of infant nutrition. This responsibility shall cover the
planning, provision, design and dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or
other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which
reads as follows:

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and
should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in
the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total
effect" should not directly or indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better
health to the baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes,
supplements and other related products. It also sets a viable standard against which the IAC may screen
such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest,"
"justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with public interest and
welfare.

4. With regard to activities for dissemination of information to health professionals, the Court also finds
that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of
the Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to
health professionals but such information is restricted to scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to
health professionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot be construed to
encompass even the dissemination of information to health professionals, as restricted by the Milk
Code.

5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of
the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in
relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of
any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds
nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk
Code, it is the DOH which shall be principally responsible for the implementation and enforcement of
the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to
be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies’
participation in any policymaking body in relation to the advancement of breastfeeding is in accord with
the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does
not pertain to research assistance to or the continuing education of health professionals; rather, it deals
with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to health
professionals; hence, petitioner's argument against this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR
provide that research assistance for health workers and researchers may be allowed upon approval of
an ethics committee, and with certain disclosure requirements imposed on the milk company and on the
recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the DOH
under Section 8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education, of health professionals
in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of
breastmilk substitutes upon the request or with the approval of the DOH. The law does not proscribe
the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request
or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of
the RIRR which sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall determine
whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not
mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to
accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the
Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the
Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring
difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the
Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to
impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law
the power to review on appeal the order or decision of the CAA and to determine whether to impose,
remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's
Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in the
circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No.
7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose
such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded
its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is,
therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk
Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent
laws on products covered by this Code." Section 13 of the Milk Code provides for the penalties to be
imposed on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it,
to wit:

SECTION 13. Sanctions –

(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to
this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year
imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand
Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the
Board of Directors, the president, general manager, or the partners and/or the persons directly
responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for
the pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or
revoked in the event of repeated violations of this Code, or of the rules and regulations issued pursuant
to this Code. (Emphasis supplied)

8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is
frivolous.

Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof
inconsistent with these revised rules and implementing regulations are hereby repealed or modified
accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the power
to make rules and regulations which results in delegated legislation that is within the confines of the
granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the power to amend, revise,
alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to implement the provisions of a law,80 in order to
make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and
in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR
are in consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and

oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to provide the public with a
comprehensible basis to determine whether or not they have committed a violation.81 (Emphasis
supplied)

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions
that suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut

Authority, despite the fact that "our present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene whenever necessary to promote the
general welfare." There can be no question that the unregulated use or proliferation of pesticides would
be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise
does not call for removal of ‘protective regulations’." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of trade.
[Emphasis and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the
proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being
in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive.
Said section provides for the definition of the term "milk company," to wit:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant
formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any
other description of such nature, including their representatives who promote or otherwise advance
their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged
in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product
within the scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative,
national distributor or broker.

xxxx

(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the
business or function (whether directly or indirectly or through an agent or and entity controlled by or
under contract with it) of manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together under the term "milk company" the entities
defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated
in Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk
company," whereas in the Milk Code, what is used is the phrase "products within the scope of this
Code." Those are the only differences between the definitions given in the Milk Code and the definition
as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities.
The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer"
provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about
any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk
substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which
affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of
trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No.
2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.