Escolar Documentos
Profissional Documentos
Cultura Documentos
SUPREME COURT
Manila
G.R. No. 171396
May 3, 2006
May 3, 2006
May 3, 2006
May 3, 2006
May 3, 2006
May 3, 2006
May 3, 2006
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength the use of force cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of
the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He
said: "In cases involving liberty, the scales of justice should weigh heavily
against government and in favor of the poor, the oppressed, the marginalized,
the dispossessed and the weak." Laws and actions that restrict fundamental rights
come to the courts "with a heavy presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in
issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O.
No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion.
Petitioners contend that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of liberty,
without which, law becomes tyranny, with the degree of law, without which, liberty
becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by
virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists the
historical enemies of the democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad front,
to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing
governance including hindering the growth of the economy and sabotaging the
peoples confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute aclear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA
and the extreme Right, represented by military adventurists - the historical enemies
of the democratic Philippine State and who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
peoples confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was
no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out
the armed forces. He emphasized that none of the petitioners has shown that PP
1017 was without factual bases. While he explained that it is not respondents task to
state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
Taguig City. In a public statement, they vowed to remain defiant and to elude arrest
at all costs. They called upon the people to "show and proclaim our displeasure at
the sham regime. Let us demonstrate our disgust, not only by going to the streets in
protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle
I " which detailed plans for bombings and attacks during the Philippine Military
Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected
targets including some cabinet members and President Arroyo herself.6 Upon the
advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the National
Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and
copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalos D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Armys elite Scout Ranger. Lim said "it was all systems go for the
planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers
because they too, were breaking the chain of command to join the forces foist to
unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances with its
members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared:
"The Communist Party and revolutionary movement and the entire people look
forward to the possibility in the coming year of accomplishing its immediate task of
bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it
will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the
military and police are growing rapidly, hastened by the economic difficulties suffered
by the families of AFP officers and enlisted personnel who undertake counterinsurgency operations in the field." He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs
and activities related to the 20th anniversary celebration of Edsa People Power I;
and revoked the permits to hold rallies issued earlier by the local governments.
Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents
mind were organized for purposes of destabilization, are cancelled.Presidential Chief
of Staff Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from
various parts of Metro Manila with the intention of converging at the EDSA shrine.
Those who were already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up
an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground
for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president
of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures, and mock-ups of the
Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside
the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a strong presence, to tell media outlets not to connive or do anything that
would help the rebels in bringing down this government." The PNP warned that it
would take over any media organization that would not follow "standards set by the
government during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national
emergency. He asked for "balanced reporting" from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltrans lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were
told they could not be admitted because of PP 1017 and G.O. No. 5. Two members
were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club
in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5" decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo,et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017
and G.O. No. 5 were filed with this Court against the above-named respondents.
Three (3) of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech
and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
"usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her
discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto
President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of the
people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of
Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c)Section 2319 of Article VI,
and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is
an "arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued
that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017
and G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution." In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,petitioners in G.R.
Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et
al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to
free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept rests on
the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national government.
x x x If the government consciously or unconsciously oversteps these
limitations there must be some authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial
review.22
But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy;second, petitioners have
to raise a question of constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.
direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers Association v.
De la Fuente,46Pascual v. Secretary of Public Works47 and Anti-Chinese League of
the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass
upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to
show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held
that "given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to prosper
despite the lack of direct injury to the parties seeking judicial review" of
the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of Congress taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the validity
of the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
citizens cases involving constitutional issues. It held that "there must be a showing
that the citizen personally suffered some actual or threatened injury arising from the
alleged illegal official act."
In Lacson v.
Perez
,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP),
is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who
are members of Congress have standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from
"illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are
used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Taada v. Tuvera,64 that when the issue concerns a public right, it
is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right
to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies following
the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege
any direct or potential injury which the IBP as an institution or its members may
suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5.
In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry.
However, in view of the transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public funds.
The fact that she is a former Senator is of no consequence. She can no longer sue
as a legislator on the allegation that her prerogatives as a lawmaker have been
impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will
not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental importance of the
issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal
tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the "transcendental
control for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the Presidents "calling-out" power as a discretionary power solely vested
in his wisdom, it stressed that "this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of discretion."This ruling
is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to determine
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden territory,
to wit, the discretion of the political departments of the government.81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than to
satisfy the Court not that the Presidents decision is correct," but that "the President
did not act arbitrarily." Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis" and that if he fails, by way of proof, to support his assertion,
then "this Court cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyos exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor
Generals Consolidated Comment and Memorandum shows a detailed narration of
the events leading to the issuance of PP 1017, with supporting reports forming part
of the records. Mentioned are the escape of the Magdalo Group, their audacious
threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There
was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary allegations, the
Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected
to simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
Petitioners contend that PP 1017 is void on its face because of its "overbreadth."
They claim that its enforcement encroached on both unprotected and protected
rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the
citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes infree speech cases, also known under the
American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,104the US Supreme Court
held that "we have not recognized an overbreadth doctrine outside the limited
context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law
that "reflects legitimate state interest in maintaining comprehensive control over
harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence,
insurrection and rebellion are considered "harmful" and "constitutionally unprotected
conduct." InBroadrick v. Oklahoma,105 it was held:
It remains a matter of no little difficulty to determine when a law may properly be
held void on its face and when such summary action is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is
an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine,"
to be used "sparingly and only as a last resort," and is "generally
disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law explains further:
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers.
From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the
only criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress
lawless violence, invasion or rebellion." Are these conditions present in the
instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast
intelligence network, she is in the best position to determine the actual condition of
the country.
Under the calling-out power, the President may summon the armed forces to aid him
in suppressing lawless violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the Presidents calling-out power is
considered illegal or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the Presidents
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyos authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the operation
of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.
President Arroyos declaration of a "state of rebellion" was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section
4 cited above. Such declaration, in the words ofSanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17,
Article XII, a provision on the States extraordinary power to take over privatelyowned public utility and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should
not be resorted to lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for the purpose of enabling
him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration
of Martial Law can be done. Its use for any other purpose is a perversion of its nature
and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative head
shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative
detail or of subordinate or temporary interest which only concern a particular officer
or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all or
some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyos ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution. 121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate "decrees." Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that "[t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just
another facet of the emergency powers generally reposed upon Congress. Thus,
when Section 17 states that the "the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest,"
it refers to Congress, not the President. Now, whether or not the President may
exercise such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet &
Tube Co. et al. v. Sawyer,125held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is that
presidential power should be implied from the aggregate of his powers under the
Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of
the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military
power as Commander-in-Chief of the Armed Forces. The Government attempts to
do so by citing a number of cases upholding broad powers in military commanders
engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here.Even though "theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping production.
This is a job for the nations lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the Presidents power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that "All legislative Powers
herein granted shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section
17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar
occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
and perception.127 Emergencies, as perceived by legislature or executive in the
United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.131This is evident in the
Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency"
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or business affected with public
interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about
strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able
to convene and, therefore, unable to delegate to the President the power to take
over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through
which extraordinary measures are exercised, remains in Congress even in times of
crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of
the separation of powers, the fact remains that the Constitution has set up this form
of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is,
under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of
the United States, the basic features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting laws been surrendered to
another department unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-and-death struggle to preserve
the Union. The truth is that under our concept of constitutional government, in times
of extreme perils more than in normal circumstances the various branches,
executive, legislative, and judicial, given the ability to act, are called upon to perform
the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her
during the emergency to temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest without authority from
Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privatelyowned public utility or business affected with public interest. The President cannot
decide whether exceptional circumstances exist warranting the take over of privatelyowned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security,
is that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are
curtailed and trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
2006, they were arrested without warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of
the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives "raided and ransacked
without warrant" their office. Three policemen were assigned to guard their office as
a possible "source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that
they resulted from theimplementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general,does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused135 and may afford an opportunity for
abuse in the manner of application.136 The validity of a statute or ordinance is to
be determined from its general purpose and its efficiency to accomplish the end
desired,not from its effects in a particular case.137 PP 1017 is merely an
invocation of the Presidents calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021.
But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that
its implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its
exertion.138This is logical. Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal
Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules
issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations create
no relation except between the official who issues them and the official who receives
them.139 They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary
and appropriate actions and measures to suppress and prevent acts of
terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well.
The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism"
has become one of the basic slogans when it comes to the justification of the use of
force against certain states and against groups operating internationally. Lists of
states "sponsoring terrorism" and of terrorist organizations are set up and constantly
being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions or threats of the use of
force as the most recent by the United States against Iraq consists in the absence
of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying "One countrys terrorist is another
countrys freedom fighter." The apparent contradiction or lack of consistency in the
use of the term "terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few,
were originally labeled as terrorists by those who controlled the territory at the time,
but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in
vain to reach a consensus on the basic issue of definition. The organization has
intensified its efforts recently, but has been unable to bridge the gap between those
who associate "terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and those who believe in
the concept of the legitimate use of force when resistance against foreign occupation
or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference
to the contradicting categorization of organizations and movements such as
Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims the Kashmiri resistance groups who
are terrorists in the perception of India, liberation fighters in that of Pakistan the
earlier Contras in Nicaragua freedom fighters for the United States, terrorists for
the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become
the Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the
Soviet Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an occupying power or in
that of a rival, or adversary, of an occupying power in a given territory, the definition
of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector
of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of sovereign
states that determine in each and every instance how a particular armed movement
(i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy.
A "policy of double standards" on this vital issue of international affairs has been the
unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states
and not of peoples, in spite of the emphasis in the Preamble to the United Nations
Charter! has become even more serious in the present global power constellation:
one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression
on the part of the police or military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the police may consider the
act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5.
Obviously, this is abuse and oppression on their part. It must be remembered that an
act can only be considered a crime if there is a law defining the same as such and
imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No.
1835 dated January 16, 1981 enacted by President Marcos during the Martial Law
regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who conspires with any
other person for the purpose of overthrowing the Government of the Philippines x x x
by force, violence, terrorism, x x x shall be punished byreclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define "acts of terrorism." Since there is no law defining "acts
of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion
to determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5. These acts go
far beyond the calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the "acts of
terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what arenecessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and
the persons or things to be seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and police
must stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a criminal
suspect; fourth,he was treated brusquely by policemen who "held his head and tried
to push him" inside an unmarked car; fifth, he was charged with Violation of Batas
Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was
their observation that some rallyists were wearing t-shirts with the invective "Oust
Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on
the ground of insufficiency of evidence. He noted that petitioner David was not
wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in a
public place, a permit for the use of such place, and not for the assembly itself, may
be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime,
neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges
of inciting to seditionand violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers
conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be
made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The
question, if the rights of free speech and peaceful assembly are not to be preserved,
is not as to the auspices under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed or are engaged
in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws.But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the
basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMUet al. (G.R. No. 171483) unwarranted. Apparently,
their dispersal was done merely on the basis of Malacaangs directive canceling all
permits previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that "freedom
of assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may
deny the citizens right to exercise it. Indeed, respondents failed to show or convince
the Court that the rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits.150 The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a persons right is
restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential to the
vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search
of the Tribunes offices and the seizure of its materials for publication and other
papers are illegal; and that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that
the policemen were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 oclock in the
morning and without any search warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law, and
it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to
say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of
the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and "should result in no constitutional or statutory breaches if applied
according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination
has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is
limited to the calling out by the President of the military to prevent or suppress
lawless violence, invasion or rebellion. When in implementing its provisions,
pursuant to G.O. No. 5, the military and the police committed acts which violate the
citizens rights under the Constitution, this Court has to declare such acts
unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening
event would have normally rendered this case moot and academic. However, while
PP 1017 was still operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not
again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and
violent." Consequently, the transcendental issues raised by the parties should not be
"evaded;" they must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the
relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions
giving the President express or implied power (1) to issue decrees; (2) to direct the
AFP to enforce obedience to all lawseven those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of
the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP to
carry out the provisions of PP 1017. Significantly, it also provides a valid standard
that the military and the police should take only the "necessary and appropriate
actions and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said
G.O. While "terrorism" has been denounced generally in media, no law has been
enacted to guide the military, and eventually the courts, to determine the limits of the
AFPs authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald
Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and
NAFLU-KMU members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not
been individually identified and given their day in court. The civil complaints or
causes of action and/or relevant criminal Informations have not been presented
before this Court. Elementary due process bars this Court from making any specific
pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive
civil rights are ends in themselves. How to give the military the power it needs
to protect the Republic without unnecessarily trampling individual rights is
one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they
should not be arbitrary as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria MacapagalArroyo on the AFP to prevent or suppress lawless violence. However, the
provisions of PP 1017 commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President to take
over privately-owned public utility or business affected with public interest without
prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate
actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
statement on the part of the local council, which is not self-executing. Nor could it
serve as a valid ground to prohibit the operation of the lotto system in the province of
Laguna. Even petitioners admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear.
The Resolution is a policy declaration of the Provincial Government of Laguna
of its vehement opposition and/or objection to the operation of and/or all forms
of gambling including the Lotto operation in the Province of Laguna. 12
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views
which may be contrary to that of the national government's. However, this freedom to
exercise contrary views does not mean that local governments may actually enact
ordinances that go against laws duly enacted by Congress. Given this premise, the
assailed resolution in this case could not and should not be interpreted as a measure
or ordinance prohibiting the operation of lotto.
The game of lotto is a game of chance duly authorized by the national government
through an Act of Congress. Republic Act 1169, as amended by Batas Pambansa
Blg. 42, is the law which grants a franchise to the PCSO and allows it to operate the
lotteries. The pertinent provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. The Philippine
Charity Sweepstakes Office, hereinafter designated the Office, shall be the
principal government agency for raising and providing for funds for health
programs, medical assistance and services and charities of national character,
and as such shall have the general powers conferred in section thirteen of Act
Numbered One thousand four hundred fifty-nine, as amended, and shall have
the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject
to such rules and regulations as shall be promulgated by the Board of
Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang
Panlalawigan of Laguna, a local government unit, cannot issue a resolution or an
ordinance that would seek to prohibit permits. Stated otherwise, what the national
legislature expressly allows by law, such as lotto, a provincial board may not disallow
by ordinance or resolution.
In our system of government, the power of local government units to legislate and
enact ordinances and resolutions is merely a delegated power coming from
Congress. As held in Tatel vs. Virac,13 ordinances should not contravene an existing
statute enacted by Congress. The reasons for this is obvious, as elucidated
inMagtajas v. Pryce Properties Corp.14
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by
that this was one of the reasons for his refusal to issue a permit. That refusal was
predicated solely but erroneously on the provisions of Kapasiyahan Blg. 508, Taon
1995, of the Sangguniang Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz
from enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of
the Sangguniang Panlalawigan of Laguna. That resolution expresses merely a policy
statement of the Laguna provincial board. It possesses no binding legal force nor
requires any act of implementation. It provides no sufficient legal basis for
respondent mayor's refusal to issue the permit sought by private respondent in
connection with a legitimate business activity authorized by a law passed by
Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional
Trial Court of San Pedro, Laguna enjoining the petitioners from implementing or
enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of
Laguna is hereby AFFIRMED. No costs.
SO ORDERED.
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The
religious elements echoed the objection and so did the women's groups and the
youth. Demonstrations were led by the mayor and the city legislators. The media
trumpeted the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it
leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of
the herein private respondents, renovated and equipped the same, and prepared to
inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and
hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS
PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY
ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED
ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF
CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of
Cagayan de Oro, in session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation
of casino within its territorial jurisdiction, no business permit shall be
issued to any person, partnership or corporation for the operation of
casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any
persons, partnership or corporation to use its business establishment
or portion thereof, or allow the use thereof by others for casino
operation and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business
permit as defined in the preceding section shall suffer the following
penalties, to wit:
a) Suspension of the business permit for
sixty (60) days for the first offense and a
fine of P1,000.00/day
b) Suspension of the business permit for Six
(6) months for the second offense, and a
fine of P3,000.00/day
c) Permanent revocation of the business
permit and imprisonment of One (1) year,
for the third and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from
publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93
reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND
PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990
against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the establishment of
CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No.
3353, prohibiting the issuance of Business Permit and to cancel
existing Business Permit to any establishment for the using and
allowing to be used its premises or portion thereof for the operation of
CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the
Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No.
(4), Paragraph VI of the implementing rules of the Local Government
Code, the City Council as the Legislative Body shall enact measure to
suppress any activity inimical to public morals and general welfare of
the people and/or regulate or prohibit such activity pertaining to
amusement or
entertainment
in order to protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan
de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the
following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the
proprietor, partnership or corporation undertaking the operation,
conduct, maintenance of gambling CASINO in the City and closure
thereof;
b) Imprisonment of not less than six (6) months nor more than one (1)
year or a fine in the amount of P5,000.00 or both at the discretion of
the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of
gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its
publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by
PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On
March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the
writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review
under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of
Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of
Cagayan de Oro does not have the power and authority to prohibit the
establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited
games
of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160
could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are
therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial
to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with
the general powers and purposes of the instrumentality concerned and
inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing
of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and
regulate all games of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming
Corporation, 4 this Court sustained the constitutionality of the decree and even cited
the benefits of the entity to the national economy as the third highest revenue-earner
in the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly
vested with the police power under what is known as the General Welfare Clause
now embodied in Section 16 as follows:
Sec. 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The
Sangguniang Panlungsod, as the legislative body of the city, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of
this Code and in the proper exercise of the corporate powers of the city
as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient
and effective city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent,
suppress and impose appropriate penalties
for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution,
establishment and maintenance of houses
of ill repute,gambling and other prohibited
games of chance, fraudulent devices and
ways to obtain money or property, drug
addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or
pornographic materials or publications, and
such other activities inimical to the welfare
and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and
businesses within their territorial limits in the interest of the general welfare. 5
units have now no choice but to prevent and suppress gambling, which in the
petitioners' view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize as they must
all be prohibited by the local government units pursuant to the mandatory duty
imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist
except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation
of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,
conveniently discarding the rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order No.
112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No.
5447 regarding the Special Education Fund; Presidential Decree No.
144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No. 436
as amended by Presidential Decree No. 558; and Presidential Decree
Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed
and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar
as they are inconsistent with the provisions of this Code: Sections 2, 16,
and 29 of Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71,
72, 73, and 74 of Presidential Decree No. 463, as amended; and
Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.
Apostol, 10 this Court explained:
force of a statute, as well as the public policy expressed in the decree allowing the
playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute
is obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might, by a single
act, and if we can suppose it capable of so great a folly and so great a
wrong, sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are
concerned. They are, so to phrase it, the mere tenants at will of the
legislature. 11
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to
tax, 12which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which cannot
defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of
their constituents and their apprehensions that the welfare of Cagayan de Oro City
will be endangered by the opening of the casino. We share the view that "the hope of
large or easy gain, obtained without special effort, turns the head of the
workman"13 and that "habitual gambling is a cause of laziness and ruin." 14 In People
v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out.
The laws against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of mischief."
Nevertheless, we must recognize the power of the legislature to decide, in its own
wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and
impliedly affirmed in the Local Government Code. That decision can be revoked by
this Court only if it contravenes the Constitution as the touchstone of all official acts.
We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines,
remains unimpaired. P.D. 1869 has not been modified by the Local Government
Code, which empowers the local government units to prevent or suppress only those
forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute
that cannot be amended or nullified by a mere ordinance. Hence, it was not
competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their
praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public
policy announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the
respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so
ordered.
GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutionality of
Ordinance No. 640 passed by the Municipal Board of the City of Butuan on April 21,
1969, the title and text of which are reproduced below:
ORDINANCE--640
The City of Butuan, apparently realizing that it has no authority to enact the
ordinance in question under its power to regulate embodied in Section 15(n), now
invokes the police power as delegated to it under the general welfare clause to justify
the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interest of
the public generally requires an interference with private rights, but the means
adopted must be reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals. 17 The legislature may not, under the guise
of protecting the public interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other words, the
determination as to what is a proper exercise of its police power is not final or
conclusive, but is subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the
Constitution for being oppressive, unfair, unjust, confiscatory, and an undue restraint
of trade, and violative of the right of persons to enter into contracts, considering that
the theater owners are bound under a contract with the film owners for just
admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of
Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police
power, Inasmuch as the same generally entails a curtailment of the
liberty, the rights and/or the property of persons, which are protected
and even guaranteed by the Constitution, the exercise of police power
is necessarily subject to a qualification, limitation or restriction
demanded by the regard, the respect and the obedience due to the
prescriptions of the fundamental law, particularly those forming part of
the Constitution of Liberty, otherwise known as the Bill of Rights the
police power measure must be reasonable. In other words, individual
rights may be adversely affected by the exercise of police power to the
extent only and only to the extent--that may be fairly required by the
legitimate demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the
ordinance in question was passed shows that a certain Councilor Calo, the
proponent of the measure, had taken into account the complaints of parents that for
them to pay the full price of admission for their children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does not spell
out its raison d'etre in all probability the respondents were impelled by the awareness
that children are entitled to share in the joys of their elders, but that considering that,
apart from size, children between the ages of seven and twelve cannot fully grasp
the nuance of
movies
alleges that by charging the full price, the children are being exploited by movie
house operators. We fail to see how the children are exploited if they pay the full
price of admission. They are treated with the same quality of
entertainment
as the adults. The supposition of the trial court that because of their age children
cannot fully grasp the nuances of such
entertainment
as adults do fails to convince Us that the reduction in admission ticket price is
justifiable. In fact, by the very claim of respondent that movies and the like are
attractive nuisances, it is difficult to comprehend why the municipal board passed the
subject ordinance. How can the municipal authorities consider the movies an
attractive nuisance and yet encourage parents and children to patronize them by
lowering the price of admission for children? Perhaps, there is some ,truth to the
argument of petitioners that Ordinance No. 640 is detrimental to the public good and
the general welfare of society for it encourages children of tender age to frequent the
movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater
operators will be discouraged from exhibiting wholesome movies for general
patronage, much less children's pictures if only to avoid compliance with the
ordinance and still earn profits for themselves. For after all, these movie house and
theater operators cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which are restricted
by censorship laws. So instead of children being able to share in the joys of their
elders as envisioned by the trial court, there will be a dearth of wholesome and
educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state
courts of the United States which upheld the right of the proprietor of a theater to fix
the price of an admission ticket as against the right of the state to interfere in this
regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will
of the proprietor of the theater or it may be evidence of a contract whereby, for a
valuable consideration, the purchaser has acquired the right to enter the theater and
observe the performance on condition that he behaves properly. 23 Such ticket,
therefore, represents a right, Positive or conditional, as the case may be, according
to the terms of the original contract of sale. This right is clearly a right of property.
The ticket which represents that right is also, necessarily, a species of property. As
such, the owner thereof, in the absence of any condition to the contrary in the
contract by which he obtained it, has the clear right to dispose of it, to sell it to whom
he pleases and at such price as he can obtain. 24 So that an act prohibiting the sale
of tickets to theaters or other places of amusement at more than the regular price
was held invalid as conflicting with the state constitution securing the right of
property. 25
In Collister vs. Hayman, 26 it was held:
economic security and the general welfare of the people. And these laws cannot be
impugned as unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other
exhibitions. In no sense could these businesses be considered public utilities. The
State has not found it appropriate as a national policy to interfere with the admission
prices to these performances. This does not mean however, that theaters and
exhibitions are not affected with public interest even to a certain degree. Motion
pictures have been considered important both as a medium for the communication of
Ideas and expression of the artistic impulse. Their effects on the perceptions by our
people of issues and public officials or public figures as well as the prevailing cultural
traits are considerable. 31 People of all ages flock to movie houses, games and other
public exhibitions for recreation and relaxation. The government realizing their
importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 Their aesthetic entertainment and even educational values cannot be
underestimated. Even police measures regulating the operation of these businesses
have been upheld in order to safeguard public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise of
police power, the same must be resolved in the negative. While it is true that a
business may be regulated, it is equally true that such regulation must be within the
bounds of reason, that is, the regulatory ordinance must be reasonable, and its
provisions cannot be oppressive amounting to an arbitrary interference with the
business or calling subject of regulation. A lawful business or calling may not, under
the guise of regulation, be unreasonably interfered with even by the exercise of
police power. 33 A police measure for the regulation of the conduct, control and
operation of a business should not encroach upon the legitimate and lawful exercise
by the citizens of their property rights. 34 The right of the owner to fix a price at which
his property shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause."" Hence, the proprietors of a
theater have a right to manage their property in their own way, to fix what prices of
admission they think most for their own advantage, and that any person who did not
approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor of the
validity of the ordinance. This maybe the rule but it has already been held that
although the presumption is always in favor of the validity or reasonableness of the
ordinance, such presumption must nevertheless be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself or is established by
proper evidence. 37 The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or
unless it is against public policy or is unreasonable, oppressive, partial,
discriminating or in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioners for
even if We could assume that, on its face, the interference was reasonable, from the
foregoing considerations, it has been fully shown that it is an unwarranted and
unlawful curtailment of the property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, under the guise of
exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby
REVERSED and SET ASIDE and a new judgment is hereby rendered declaring
Ordinance No. 640 unconstitutional and, therefore, null and void. This decision is
immediately executory.
SO ORDERED.
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila,
HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of
Manila and Presiding Officer of the City Council of Manila, HON. ERNESTO A.
NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U. LOPEZ,
HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN, HON.
NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON.
PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN,
HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A.
MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO,
HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E.
HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON.
KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO C. SISON, HON.
BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER
S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and
HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of
Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and
MALATE TOURIST DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral
is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be
well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to "make the
hammer fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not lacking in zeal to
promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules
on Civil Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511
of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity
of Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and lodging
houses.5 It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the Department of Tourism as a hotel.6 On 28 June
1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the
lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo
S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila
(City Council). MTDC prayed that the Ordinance, insofar as it includes motels and
inns as among its prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the saidOrdinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION
OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT
, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER
PURPOSES.10
The Ordinance is reproduced in full, hereunder:
MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv)12 of the Local Government Code of 1991 (the Code)
grants to the City Council only the power to regulate the establishment, operation
and maintenance of hotels, motels, inns, pension houses, lodging houses and other
similar establishments; (2) The Ordinance is void as it is violative of Presidential
Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate
area as a commercial zone with certain restrictions; (3) The Ordinance does not
constitute a proper exercise of police power as the compulsory closure of the motel
business has no reasonable relation to the legitimate municipal interests sought to
be protected; (4) The Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinanceviolates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power
to find as a fact that a particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6) The Ordinance constitutes a denial of
equal protection under the law as no reasonable basis exists for prohibiting the
operation of motels and inns, but not pension houses, hotels, lodging houses or
other similar establishments, and for prohibiting said business in the Ermita-Malate
area but not outside of this area.14
In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained
that the City Council had the power to "prohibit certain forms of entertainment in
order to protect the social and moral welfare of the community" as provided for in
Section 458 (a) 4 (vii) of the Local Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities
for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion of
said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3],
Series of 1993, of the City of Manila null and void, and making permanent the
writ of preliminary injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that
the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and
oppressive exercise of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in
declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions
they made before the lower court. They contend that the assailed Ordinance was
enacted in the exercise of the inherent and plenary power of the State and the
general welfare clause exercised by local government units provided for in Art. 3,
Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458 (a) 4
(vii) of the Code.34 They allege that theOrdinance is a valid exercise of police power;
it does not contravene P.D. 499; and that it enjoys the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that
the Ordinance is ultra vires and that it is void for being repugnant to the general law.
It reiterates that the questioned Ordinance is not a valid exercise of police power;
that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection clause;
and that it confers on petitioner City Mayor or any officer unregulated discretion in
the execution of the Ordinance absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and tenderness for
the Ermita-Malate area being its home for several decades. A long-time resident, the
Court witnessed the area's many turn of events. It relished its glory days and
endured its days of infamy. Much as the Court harks back to the resplendent era of
the Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of the opinion, and
so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein
transgress the cardinal rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held
that for an ordinance to be valid, it must not only be within the corporate powers of
the local government unit to enact and must be passed according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not contrary to
the Constitution and to the laws.38 The Ordinance must satisfy two requirements: it
must pass muster under the test of constitutionality and the test of consistency with
the prevailing laws. That ordinances should be constitutional uphold the principle of
the supremacy of the Constitution. The requirement that the enactment must not
violate existing law gives stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a delegation of legislative
power from the national legislature. The delegate cannot be superior to the principal
or exercise powers higher than those of the latter.39
This relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the policy
of local autonomy. The national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it. 40
The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units,
as agencies of the State, are endowed with police power in order to effectively
accomplish and carry out the declared objects of their creation.41 This delegated
police power is found in Section 16 of the Code, known as the general welfare
clause, viz:
SECTION 16. General Welfare.Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative
bodies; in this case, thesangguniang panlungsod or the city council. The Code
empowers the legislative bodies to "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code. 42 The
inquiry in this Petition is concerned with the validity of the exercise of such delegated
power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate
to the constitutional limitations thereon; and is subject to the limitation that its
exercise must be reasonable and for the public good.43In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.45
SEC. 1. No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use without just
compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person
shall be deprived of life, liberty or property without due process of law. . . ."48
There is no controlling and precise definition of due process. It furnishes though a
standard to which governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of reason, obedience to the
dictates of justice,49 and as such it is a limitation upon the exercise of the police
power.50
The purpose of the guaranty is to prevent governmental encroachment against the
life, liberty and property of individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained by the established principles
of private rights and distributive justice; to protect property from confiscation by
legislative enactments, from seizure, forfeiture, and destruction without a trial and
conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.51
Lacking a concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights62 a violation of the due process
clause.
The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly
operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and
motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial
notice of the "alarming increase in the rate of prostitution, adultery and fornication in
Manila traceable in great part to existence of motels, which provide a necessary
atmosphere for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Council's police powers,
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication
of the community's social ills can be achieved through means less restrictive of
private rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will notper se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery,
fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit, 65 it is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which are not per
se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of
places that it may even take place in the substitute establishments enumerated
under Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be
followed, in the remote instance that an immoral sexual act transpires in a church
cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park,
curb, street or even vehicles for that matter will not be exempt from the prohibition.
Simply because there are no "pure" places where there are impure men. Indeed,
even the Scripture and the Tradition of Christians churches continually recall the
presence and universality of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature
cannot be said to be injurious to the health or comfort of the community and which in
itself is amoral, but the deplorable human activity that may occur within its premises.
While a motel may be used as a venue for immoral sexual activity, it cannot for that
reason alone be punished. It cannot be classified as a house of ill-repute or as a
nuisance per se on a mere likelihood or a naked assumption. If that were so and if
that were allowed, then the Ermita-Malate area would not only be purged of its
supposed social ills, it would be extinguished of its soul as well as every human
activity, reprehensible or not, in its every nook and cranny would be laid bare to the
estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinancemay to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
"wholesome," "innocent" establishments. In the instant case, there is a clear invasion
of personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City
of Manila so desires to put an end to prostitution, fornication and other social ills, it
can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may
exercise its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other means to
reasonably accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners
and/or operators of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which "to wind up business operations
or to transfer to any place outside the Ermita-Malate area or convert said businesses
to other kinds of business allowable within the area." Further, it states in Section 4
that in cases of subsequent violations of the provisions of the Ordinance, the
"premises of the erring establishment shall be closed and padlocked permanently."
It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include
"the right to exist and the right to be free from arbitrary restraint or servitude. The
term cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare."68 In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will;
to earn his livelihood by any lawful calling; and to pursue any avocation are all
deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify
the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme
Court explained:
These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
universe, and of the mystery of human life. Beliefs about these matters could
not define the attributes of personhood where they formed under compulsion
of the State.71
Persons desirous to own, operate and patronize the enumerated establishments
under Section 1 of the Ordinancemay seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motel's premisesbe
it stressed that their consensual sexual behavior does not contravene any
fundamental state policy as contained in the Constitution.72 Adults have a right to
choose to forge such relationships with others in the confines of their own private
lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice.73 Their right to liberty under
the due process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law. Liberty
should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government
restraint; it must include privacy as well, if it is to be a repository of freedom. The
right to be let alone is the beginning of all freedomit is the most comprehensive of
rights and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words
of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is
set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in
itself it is fully deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties
but the Court chooses to exercise restraint and restrict itself to the issues presented
when it should. The previous pronouncements of the Court are not to be interpreted
as a license for adults to engage in criminal conduct. The reprehensibility of such
conduct is not diminished. The Court only reaffirms and guarantees their right to
make this choice. Should they be prosecuted for their illegal conduct, they should
suffer the consequences of the choice they have made. That, ultimately, is their
choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests
the respondent of the beneficial use of its property.77 The Ordinance in Section 1
thereof forbids the running of the enumerated businesses in the Ermita-Malate area
and in Section 3 instructs its owners/operators to wind up business operations or to
transfer outside the area or convert said businesses into allowed businesses. An
ordinance which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as a taking
of the property without just compensation.78 It is intrusive and violative of the private
property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property
shall not be taken for public use without just compensation." The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking
occurs when the government confiscates or physically occupies property. A
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also
could be found if government regulation of the use of property went "too far." When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property
may be regulated to a certain extent, if regulation goes too far it will be recognized as
a taking.82
No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
"a question of degree and therefore cannot be disposed of by general propositions."
On many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each case.
The Court asks whether justice and fairness require that the economic loss caused
by public action must be compensated by the government and thus borne by the
public as a whole, or whether the loss should remain concentrated on those few
persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that government
regulation is a taking if it leaves no reasonable economically viable use of property in
a manner that interferes with reasonable expectations for use.84A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owner's point of view, equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land make the use
prohibitable.85 When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places
limitations on land that fall short of eliminating all economically beneficial use, a
taking nonetheless may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings
clause which is to prevent the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a
whole.87
A restriction on use of property may also constitute a "taking" if not reasonably
necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments
three (3) months from its approval within which to "wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area." The directive to "wind up business
operations" amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his
establishment to accommodate an "allowed" business, the structure which housed
the previous business will be left empty and gathering dust. Suppose he transfers it
to another area, he will likewise leave the entire establishment idle. Consideration
must be given to the substantial amount of money invested to build the edifices
which the owner reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businessesare confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without
just compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to
the "problem," it merely relocates it. Not only is this impractical, it is unreasonable,
onerous and oppressive. The conversion into allowed enterprises is just as ridiculous.
How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking of
private property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a subsequent violation should
be borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A
zoning ordinance, although a valid exercise of police power, which limits a
"wholesome" property to a use which can not reasonably be made of it constitutes
the taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we know
them. The police powers of local government units which have always received
broad and liberal interpretation cannot be stretched to cover this particular taking.
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: "The ideal situation is for the law's benefits to be available to
all, that none be placed outside the sphere of its coverage. Only thus could
chance and favor be excluded and the affairs of men governed by that serene
and impartial uniformity, which is of the very essence of the idea of law."
There is recognition, however, in the opinion that what in fact exists "cannot
approximate the ideal. Nor is the law susceptible to the reproach that it does
not take into account the realities of the situation. The constitutional guarantee
then is not to be given a meaning that disregards what is, what does in fact
exist. To assure that the general welfare be promoted, which is the end of law,
a regulatory measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal protection
clause only if they can show that the governmental act assailed, far from
being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in
reason." Classification is thus not ruled out, it being sufficient to quote from
the Tuason decision anew "that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in the privileges
conferred and the liabilities imposed. Favoritism and undue preference cannot
be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions
cast on some in the group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the
classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause.103 The classification must, as an
indispensable requisite, not be arbitrary. To be valid, it must conform to the following
requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition,
all are commercial establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly treated,
both as to rights conferred and obligations imposed. It is arbitrary as it does not rest
While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement; regulate such other events or activities
for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of
amusement or entertainment in order to protect the social and moral
welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress and prohibit
altogether the establishment, operation and maintenance of such establishments. It
is well to recall the rulings of the Court inKwong Sing v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the
Administrative Code, means and includes the power to control, to govern, and
to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate laundries,
the municipal authorities could make proper police regulations as to the mode
in which the employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
The powers conferred upon a municipal council in the general welfare clause,
or section 2238 of the Revised Administrative Code, refers to matters not
covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in question,
notwithstanding the provision of section 2242 (g), would be to make the latter
superfluous and nugatory, because the power to prohibit, includes the power
to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised
Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute
repeals prior ones which are repugnant thereto. As between two laws on the same
subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will.116 If there is an
inconsistency or repugnance between two statutes, both relating to the same subject
matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail and
override the earlier.117
Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions expressly
repealing them. Such repeals have been divided into two general classes: those
which occur where an act is so inconsistent or irreconcilable with an existing prior act
that only one of the two can remain in force and those which occur when an act
covers the whole subject of an earlier act and is intended to be a substitute therefor.
The validity of such a repeal is sustained on the ground that the latest expression of
the legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts,
city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions
of this Code are hereby repealed or modified accordingly." Thus, submitting to
petitioners' interpretation that the Revised Charter of Manila empowers the City
Council to prohibit motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with the latter's provisions
granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property, health
or comfort of the community. It is a legitimate business. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under
Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate
penalties for habitual drunkenness in public places, vagrancy,
mendicancy, prostitution, establishment and maintenance of
houses of ill
repute, gambling and other prohibited
games
of chance, fraudulent devices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals of
the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may
prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City Council's powers
in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to
overreach its prohibitory powers. It is evident that these establishments may only be
regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the "contractors" defined in paragraph (h) thereof. The same Section also
defined "amusement" as a "pleasurable diversion and entertainment," "synonymous
to relaxation, avocation, pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of amusement where
one seeks admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers these
Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its
social sins. Police power legislation of such character deserves the full endorsement
of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or constitutional authority to stand on.
Local legislative bodies, in this case, the City Council, cannot prohibit the operation
of the enumerated establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial
Court declaring the Ordinancevoid is AFFIRMED. Costs against petitioners.
SO ORDERED.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international
business and economic relations amongst states. It has irreversibly propelled the
world towards trade liberalization and economic globalization. Liberalization,
globalization, deregulation and privatization, the third-millennium buzz words, are
ushering in a new borderless world of business by sweeping away as mere historical
relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and becoming the best in
specific industries in a market-driven and export-oriented global scenario are
replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In the words of Peter Drucker,
the well-known management guru, "Increased participation in the world economy has
become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World
War, plans for the establishment of three multilateral institutions inspired by that
grand political body, the United Nations were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and later developing countries;
the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize unilateral protectionist
policies that invite challenge, even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave
birth to that administering body the World Trade Organization with the signing
of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement
by its members. 1
Like many other developing countries, the Philippines joined WTO as a founding
member with the goal, as articulated by President Fidel V. Ramos in two letters to
the Senate (infra), of improving "Philippine access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products." The President also saw in the WTO the opening
of "new opportunities for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of) more investments
into the country." Although the Chief Executive did not expressly mention it in his
letter, the Philippines and this is of special interest to the legal profession will
benefit from the WTO system of dispute settlement by judicial adjudication through
the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative
bargaining strengths, and where naturally, weak and underdeveloped countries were
at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and
products of member-countries on the same footing as Filipinos and local products"
and (2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of
both Congress and the Supreme Court, the instant petition before this Court assails
the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a
self-reliant and independent national economy effectively controlled by Filipinos . . .
(to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in
worldwide trade liberalization and economic globalization? Does it proscribe
Philippine integration into a global economy that is liberalized, deregulated and
privatized? These are the main questions raised in this petition for certiorari,
prohibition andmandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in
the ratification by the President of the Philippines of the Agreement Establishing the
World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of
its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various executive
offices concerned therewith. This concurrence is embodied in Senate Resolution No.
97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department
of Trade and Industry (Secretary Navarro, for brevity), representing the Government
of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act,
for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of
Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of
the Republic of the Philippines, after having seen and considered the
aforementioned Agreement Establishing the World Trade Organization
and the agreements and associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are
integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994,
do hereby ratify and confirm the same and every Article and Clause
thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is
composed of the Agreement Proper and "the associated legal instruments included
in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts
thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the
WTO Agreement (and its integral annexes aforementioned) but also (1) the
Ministerial Declarations and Decisions and (2) the Understanding on Commitments
in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations
and decisions on a wide range of matters, such as measures in favor of
least developed countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and agreements on
technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of
commitments to existing non-conforming measures, market access,
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is "vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction when
they voted for concurrence in the ratification of the constitutionallyinfirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction when
they concurred only in the ratification of the Agreement Establishing the
World Trade Organization, and not with the Presidential submission
which included the Final Act, Ministerial Declaration and Decisions, and
the Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the
several issues raised by petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the
World Trade Organization and the Agreements and Associated Legal
Instruments included in Annexes one (1), two (2) and three (3) of that
agreement" cited by petitioners directly contravene or undermine the
letter, spirit and intent of Section 19, Article II and Sections 10 and 12,
Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating the
rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by
the President of the Philippines of the Agreement establishing the
World Trade Organization" implied rejection of the treaty embodied in
the Final Act.
By raising and arguing only four issues against the seven presented by petitioners,
the Solicitor General has effectively ignored three, namely: (1) whether the petition
presents a political question or is otherwise not justiciable; (2) whether petitionermembers of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-members of the
Senate acted in grave abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing notwithstanding, this Court
resolved to deal with these three issues thus:
(1) The "political question" issue being very fundamental and vital, and being a
matter that probes into the very jurisdiction of this Court to hear and decide this case
was deliberated upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and
the respondents have effectively waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in respondents' favor, will not cause the
petition's dismissal as there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be taken up as an integral part of the disposition of the four issues
raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not
question the locus standi of petitioners. Hence, they are also deemed to have waived
the benefit of such issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION
INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH
THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an
action of the legislative branch is seriously alleged to have infringed the Constitution,
it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." 12 Once a
"controversy as to the application or interpretation of a constitutional provision is
raised before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is
clearly set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to strike
down grave abuse of discretion on the part of any branch or instrumentality of
government including Congress. It is an innovation in our political law. 16 As
explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as
to constitute an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate remedy in the ordinary course of law, we have no hesitation at
all in holding that this petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition andmandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will
not review the wisdom of the decision of the President and the Senate in enlisting
the country into the WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on the propriety of the
government's economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise
its constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." The counterpart of this article in the 1935 Constitution 21 is called the "basic
political creed of the nation" by Dean Vicente Sinco. 22 These principles in Article II
are not intended to be self-executing principles ready for enforcement through the
courts. 23 They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of laws. As held in
the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections of Article XII are not "selfexecuting provisions, the disregard of which can give rise to a cause of action in the
courts. They do not embody judicially enforceable constitutional rights but guidelines
for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles
need legislative enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal
Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13
(Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these
are merely statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not
intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the
legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy
was not judicial but political. The electorate could express
their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas,
Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board
constitutional principles are sourced from basic considerations of due process and
the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in his concurring
opinion inOposa vs. Factoran, Jr., 26 explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution that is or may be violated by the actions, or failures to
act, imputed to the public respondent by petitioners so that the trial
court can validly render judgment grating all or part of the relief prayed
for. To my mind, the court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution
and the existence of the Philippine Environment Code, and that the trial
and understood in relation to the other sections in said article, especially Secs. 1 and
13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to
raising the quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries
that make full and efficient use of human and natural resources, and
which are competitive in both domestic and foreign markets. However,
the State shall protect Filipino enterprises against unfair foreign
competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions
of the country shall be given optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation
for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially
the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of
rights, privileges and concessions covering the national economy and
patrimony" 27 and in the use of "Filipino labor, domestic materials and locallyproduced goods"; (2) by mandating the State to "adopt measures that help make
them competitive; 28 and (3) by requiring the State to "develop a self-reliant and
independent national economy effectively controlled by Filipinos." 29 In similar
language, the Constitution takes into account the realities of the outside world as it
requires the pursuit of "a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and
speaks of industries "which are competitive in both domestic and foreign markets" as
well as of the protection of "Filipino enterprises againstunfair foreign competition and
trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al., 31 this Court held that "Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rule for its enforcement.
From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the constitutional provision
itself states, it is enforceable only in regard to "the grants of rights, privileges and
concessions covering national economy and patrimony" and not to every aspect of
trade and commerce. It refers to exceptions rather than the rule. The issue here is
not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the
issue is whether, as a rule, there are enough balancing provisions in the Constitution
to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And
we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. 32 In other words, the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and investments into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of equality
and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats
and veto powers in the Security Council, in the WTO, decisions are made on the
basis of sovereign equality, with each member's vote equal in weight to that of any
other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions
of the Ministerial Conference and the General Council shall be taken by
the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require
three fourths vote. Amendments would require two thirds vote in
general. Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from
the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through
the WTO than through one-on-one negotiations with developed countries. Within the
WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted in law. Thus, the basic principles
underlying the WTO Agreement recognize the need of developing countries like the
Philippines to "share in the growth in international tradecommensurate with the
needs of their economic development." These basic principles are found in the
preamble34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the objective of
sustainable development, seeking both to protect and preserve the
environment and to enhance the means for doing so in a manner
consistent with their respective needs and concerns at different levels
of economic development,
Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed
among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and durable
multilateral trading system encompassing the General Agreement on
Tariffs and Trade, the results of past trade liberalization efforts, and all
of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, . . . (emphasis
supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the
foregoing basic principles, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff reduction and the period
within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within
a period of six (6) years while developing countries including the Philippines
are required to effect an average tariff reduction of only 24% within ten (10) years.
can withstand the assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist 38 explains:
The Constitution must be quintessential rather than superficial, the root
and not the blossom, the base and frame-work only of the edifice that
is yet to rise. It is but the core of the dream that must take shape, not in
a twinkling by mandate of our delegates, but slowly "in the crucible of
Filipino minds and hearts," where it will in time develop its sinews and
gradually gather its strength and finally achieve its substance. In fine,
the Constitution cannot, like the goddess Athena, rise full-grown from
the brow of the Constitutional Convention, nor can it conjure by mere
fiat an instant Utopia. It must grow with the society it seeks to restructure and march apace with the progress of the race, drawing from
the vicissitudes of history the dynamism and vitality that will keep it, far
from becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its
laws, regulations and administrative procedures with its obligations as provided in
the annexed Agreements." 39 Petitioners maintain that this undertaking "unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative power which
under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress
of the Philippines. It is an assault on the sovereign powers of the Philippines
because this means that Congress could not pass legislation that will be good for our
national interest and general welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods . . . but also to the flow of
investments and money . . . as well as to a whole slew of agreements on sociocultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the power
to tax, which is lodged in the Congress. 41 And while the Constitution allows
Congress to authorize the President to fix tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts, such authority is subject to
"specified limits and . . . such limitations and restrictions" as Congress may
provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments on this issue. However, while sovereignty has traditionally
been deemed absolute and all-encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies, the Constitution "adopts the
generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity,
with all nations." 43 By the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be automatically
part of our own laws. 44 One of the oldest and most fundamental rules in international
law is pacta sunt servanda international agreements must be performed in good
faith. "A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a convention
or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse matters as, for example,
the lease of naval bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations.46 The
sovereignty of a state therefore cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations imposed by the very nature
of membership in the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny
alone. The age of self-sufficient nationalism is over. The age of interdependence is
here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the "concept of
sovereignty as auto-limitation." 47-A Under Article 2 of the UN Charter, "(a)ll members
shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action." Such
assistance includes payment of its corresponding share not merely in administrative
expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle
East and in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their
own territory. Another example: although "sovereign equality" and "domestic
jurisdiction" of all members are set forth as underlying principles in the UN Charter,
(h) Bilateral notes with Israel for the abolition of transit and visitor visas
where the Philippines exempted Israeli nationals from the requirement
of obtaining transit or visitor visas for a sojourn in the Philippines not
exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from
the requirement of obtaining transit and visitor visa for a sojourn not
exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines
agreed that premises of Special Missions in the Philippines are
inviolable and its agents can not enter said premises without consent of
the Head of Mission concerned. Special Missions are also exempted
from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention,
the Philippines agreed to be governed by the Vienna Convention on
the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court
of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the
existence of any fact which, if established, would constitute a breach
"of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of
its sovereign powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal commitment of
the other contracting states in granting the same privilege and immunities to the
Philippines, its officials and its citizens. The same reciprocity characterizes the
Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human
rights, the environment, the law of the sea, or trade, constrain domestic
political sovereignty through the assumption of external obligations. But
unless anarchy in international relations is preferred as an alternative,
in most cases we accept that the benefits of the reciprocal obligations
involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to
durable, well-defined substantive norms and objective dispute
resolution procedures reduce the risks of larger countries exploiting
raw economic power to bully smaller countries, by subjecting power
relations to some form of legal ordering. In addition, smaller countries
typically stand to gain disproportionately from trade liberalization. This
is due to the simple fact that liberalization will provide access to a
larger set of potential new trading relationship than in case of the larger
country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines
"adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic
Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) 49 intrudes on the power of the Supreme Court to promulgate rules
concerning pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS,
restate its full text as follows:
51
it will be fruitful to
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement
of the rights of the owner referred to in paragraph 1 (b) of Article 28, if
the subject matter of a patent is a process for obtaining a product, the
judicial authorities shall have the authority to order the defendant to
prove that the process to obtain an identical product is different from
the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence
of proof to the contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical
product was made by the process and the owner of the
patent has been unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall
be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the
words "in the absence of proof to the contrary") presumption that a product shown to
be identical to one produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is "substantial
likelihood" that the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact process used in
obtaining such identical product. Hence, the "burden of proof" contemplated by
Article 34 should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually refers to
the "burden of evidence" (burden of going forward) placed on the producer of the
identical (or fake) product to show that his product was produced without the use of
the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner
still has to introduce evidence of the existence of the alleged identical product, the
fact that it is "identical" to the genuine one produced by the patented process and the
fact of "newness" of the genuine product or the fact of "substantial likelihood" that the
identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as
the present law on the subject, Republic Act No. 165, as amended, otherwise known
as the Patent Law, provides a similar presumption in cases of infringement of
patented design or utility model, thus:
Sec. 60. Infringement. Infringement of a design patent or of a patent
for utility model shall consist in unauthorized copying of the patented
design or utility model for the purpose of trade or industry in the article
or product and in the making, using or selling of the article or product
copying the patented design or utility model. Identity or substantial
identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process in NEW or (2) there is a substantial likelihood that the identical product was
made by the process and the process owner has not been able through reasonable
effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing
the provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third
issue derogation of legislative power will apply to this fourth issue also. Suffice
it to say that the reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it
is with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on
patents, trademarks and copyrights, the adjustment in legislation and rules of
procedure will not be substantial. 52
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the
conduct of trade relations among its Members in matters to the
agreements and associated legal instruments included in the Annexes
to this Agreement.
2. The Agreements and associated legal instruments included in
Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included in Annex
4 (hereinafter referred to as "Plurilateral Trade Agreements") are also
part of this Agreement for those Members that have accepted them,
and are binding on those Members. The Plurilateral Trade Agreements
do not create either obligation or rights for Members that have not
accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as "GATT 1994") is legally distinct
from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as
shown by the members' deliberation on August 25, 1994. After reading the letter of
President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Taada that what
was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw upon understanding that
his suggestion for an alternative solution at that time was acceptable.
That suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question of the
submission could be clarified.
presumptions, this Court will resolve every doubt in its favor. Using the foregoing
well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senate's processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senate's exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the
State to develop an independent national economy effectively controlled by Filipinos;
and to protect and/or prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles while serving as judicial
and legislative guides are not in themselves sources of causes of action.
Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a "trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality
and reciprocity" and the promotion of industries "which are competitive in both
domestic and foreign markets," thereby justifying its acceptance of said treaty. So
too, the alleged impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution
to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it "a part of the law of the land" is
a legitimate exercise of its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal hostility" in such
exercise. It is not impossible to surmise that this Court, or at least some of its
members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to nullify its decision.
To do so would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its authority. As to
whether such exercise was wise, beneficial or viable is outside the realm of judicial
inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade
liberalization and economic globalization is a matter that our people should
determine in electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an
Asian Renaissance 65 where "the East will become the dominant region of the world
economically, politically and culturally in the next century." He refers to the "free
market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There
are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible
limitations on national sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade
law. The alternative to WTO is isolation, stagnation, if not economic self-destruction.
Duly enriched with original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and endowed with a vision
February 1, 2011
to cover those considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.5
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or
approval" by the signatory states.6 As of the filing of the instant petition, only 92 out
of the 139 signatory countries appear to have completed the ratification, approval
and concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note
No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and
put in effect the Agreement with the US government. In esse, the Agreement aims to
protect what it refers to and defines as "persons" of the RP and US from frivolous
and harassment suits that might be brought against them in international tribunals. 8 It
is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have
been effected by and between the US and 33 other countries. 9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, "persons" are current or former
Government officials, employees (including contractors), or military personnel
or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent
the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or
third country, or expelled to a third country, for the purpose of
surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of
the Philippines to a third country, the [US] will not agree to the surrender or
transfer of that person by the third country to any international tribunal, unless
such tribunal has been established by the UN Security Council, absent the
express consent of the Government of the Republic of the Philippines [GRP].
of issues upon which the court so largely depends for illumination of difficult
constitutional questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized
that, in some cases, suits are not brought by parties who have been personally
injured by the operation of a law or any other government act, but by concerned
citizens, taxpayers, or voters who actually sue in the public interest.18 Consequently,
in a catena of cases,19 this Court has invariably adopted a liberal stance on locus
standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic
and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action,
a petitioner needs to meet certain specific requirements before he can be clothed
with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.20 expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of
a statute must be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person complaining
has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of. In fine, when the proceeding involves the assertion
of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.21
In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens,
their interest in the subject matter of the petition is direct and personal. At the very
least, their assertions questioning the Agreement are made of a public right, i.e., to
ascertain that the Agreement did not go against established national policies,
practices, and obligations bearing on the States obligation to the community of
nations.
At any event, the primordial importance to Filipino citizens in general of the issue at
hand impels the Court to brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line of earlier cases, notably
in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona,
Jr.23In cases of transcendental importance, we wrote again in Bayan v.
Zamora,24 "The Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial
review."
Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not
shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department
of the government,"25 we cannot but resolve head on the issues raised before us.
Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not
only the right but in fact the duty of the judiciary to settle it. As in this petition, issues
are precisely raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding
the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the
doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international law
and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls
"into the category of inter-governmental agreements,"27 which is an internationally
accepted form of international agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.28
In another perspective, the terms "exchange of notes" and "executive agreements"
have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action. 29 On the other
hand, executive agreements concluded by the President "sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols."30 As former US High Commissioner to the Philippines
Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of
notes or otherwise begin, may sometimes be difficult of ready ascertainment.31 x x
x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as
the Non-Surrender Agreement itself, or as an integral instrument of acceptance
thereof or as consent to be boundis a recognized mode of concluding a legally
binding international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation."32 International agreements may
be in the form of (1) treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33
Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states
concerned,34 as long as the negotiating functionaries have remained within their
powers.35 Neither, on the domestic sphere, can one be held valid if it violates the
Constitution.36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect.37 As has been
observed by US constitutional scholars, a treaty has greater "dignity" than an
executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people; 38 a
ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate.
Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in
which the Court reproduced the following observations made by US legal scholars:
"[I]nternational agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent character usually
take the form of treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving arrangements of
a more or less temporary nature take the form of executive agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that are enumerated in the Eastern Sea
Trading case, and that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and settlement of
claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,41holding that an executive agreement through an exchange
of notes cannot be used to amend a treaty.
We are not persuaded.
Considering the above discussion, the Court need not belabor at length the third
main issue raised, referring to the validity and effectivity of the Agreement without
the concurrence by at least two-thirds of all the members of the Senate. The Court
has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the
obligatory effect of executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage.
From the earliest days of our history, we have entered executive agreements
covering such subjects as commercial and consular relations, most favored-nation
rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the
establishment of the ICC and is null and void insofar as it unduly restricts the ICCs
jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits
that the Agreement was constituted solely for the purpose of providing individuals or
groups of individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that state parties with
non-surrender agreements are prevented from meeting their obligations under the
Rome Statute, thereby constituting a breach of Arts. 27, 50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to
ensure that those responsible for the worst possible crimes are brought to justice in
all cases, primarily by states, but as a last resort, by the ICC; thus, any agreement
like the non-surrender agreementthat precludes the ICC from exercising its
complementary function of acting when a state is unable to or unwilling to do so,
defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of
a signatory of the Rome Statute, are obliged by the imperatives of good faith to
refrain from performing acts that substantially devalue the purpose and object of the
Statute, as signed. Adding a nullifying ingredient to the Agreement, according to
petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a
priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity
underpins the creation of the ICC. As aptly pointed out by respondents and admitted
by petitioners, the jurisdiction of the ICC is to "be complementary to national criminal
jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute pertinently
provides:
Article 1
The Court
may decide to try "persons" of the US, as the term is understood in the Agreement,
under our national criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US "persons" committing high crimes in the
country and defer to the secondary criminal jurisdiction of the ICC over them. As to
"persons" of the US whom the Philippines refuses to prosecute, the country would, in
effect, accord discretion to the US to exercise either its national criminal jurisdiction
over the "person" concerned or to give its consent to the referral of the matter to the
ICC for trial. In the same breath, the US must extend the same privilege to the
Philippines with respect to "persons" of the RP committing high crimes within US
territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can
agree to waive jurisdictionto the extent agreed uponto subjects of another State
due to the recognition of the principle of extraterritorial immunity. What the Court
wrote inNicolas v. Romulo59a case involving the implementation of the criminal
jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to longrecognized subjects of such immunity like Heads of State, diplomats and members
of the armed forces contingents of a foreign State allowed to enter another States
territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated
on the postulate that some of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not
envision a reclusive Philippines isolated from the rest of the world. It even adheres,
as earlier stated, to the policy of cooperation and amity with all nations. 60
By their nature, treaties and international agreements actually have a limiting effect
on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other. On the rationale that
the Philippines has adopted the generally accepted principles of international law as
part of the law of the land, a portion of sovereignty may be waived without violating
the Constitution.61 Such waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, "leaves criminals immune from
influence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the Constitution. At
the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and exercise a
prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other
issues raised herein, it may perhaps be pertinent to remind all and sundry that about
the time this petition was interposed, such issue of ratification was laid to rest
in Pimentel, Jr. v. Office of the Executive Secretary.67 As the Court emphasized in
said case, the power to ratify a treaty, the Statute in that instance, rests with the
President, subject to the concurrence of the Senate, whose role relative to the
ratification of a treaty is limited merely to concurring in or withholding the ratification.
And concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court
hastened to add, is the Presidents alone and cannot be encroached upon via a writ
of mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute. Under Art. 12569 thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)
9851, otherwise known as the "Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA
9851, particularly the second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines to the appropriate international
court, if any, or to another State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the
States obligation in relation to grave crimes against the law of nations, i.e., genocide,
crimes against humanity and war crimes. Relying on the above-quoted statutory
proviso, the view posits that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes defined under RA
9851, if it does not exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit:
(1) surrender the accused to the proper international tribunal; or (2) surrender the
accused to another State if such surrender is "pursuant to the applicable extradition
laws and treaties." But the Philippines may exercise these options only in cases
where "another court or international tribunal is already conducting the investigation
or undertaking the prosecution of such crime;" otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal
for any crime under RA 9851, the Philippines has the option to surrender such US
national to the international tribunal if it decides not to prosecute such US national
here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is
not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851,
such as requiring the consent of the US before the Philippines can exercise such
option, requires an amendatory law. In line with this scenario, the view strongly
argues that the Agreement prevents the Philippineswithout the consent of the
USfrom surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently,
the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution,
where the Philippines adopts, as a national policy, the "generally accepted principles
of international law as part of the law of the land," the Court is further impressed to
perceive the Rome Statute as declaratory of customary international law. In other
words, the Statute embodies principles of law which constitute customary
international law or custom and for which reason it assumes the status of an
enforceable domestic law in the context of the aforecited constitutional provision. As
a corollary, it is argued that any derogation from the Rome Statute principles cannot
be undertaken via a mere executive agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot amend or repeal, an existing law.
The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view
does not clearly state what precise principles of law, if any, theAgreement alters. And
for a third, it does not demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of the
US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory
states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity; 70 (2)
provides penal sanctions and criminal liability for their commission;71 and (3)
establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that
goes against the tenor of theAgreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal
those persons accused of crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not entirely correct, for
the above quoted proviso clearly provides discretion to the Philippine State on
whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled doctrine in statutory construction
that the word "may" denotes discretion, and cannot be construed as having
mandatory effect.73Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.1avvphi1
Besides, even granting that the surrender of a person is mandatorily required when
the Philippines does not exercise its primary jurisdiction in cases where "another
court or international tribunal is already conducting the investigation or undertaking
the prosecution of such crime," still, the tenor of the Agreement is not repugnant to
Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be
made "to another State pursuant to the applicable extradition laws and treaties." The
Agreement can already be considered a treaty following this Courts decision in
Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an
executive agreement is a treaty within the meaning of that word in international law
and constitutes enforceable domestic law vis--vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e.,
RP-US Extradition Treaty, which was executed on November 13, 1994. The
pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued
on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda77 is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office
of the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network
Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President)
and found the petition to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that "an executive agreement has
the force and effect of law x x x [it] cannot amend or repeal prior laws." 78 Hence, this
argument finds no application in this case seeing as RA 9851 is a subsequent law,
not a prior one. Notably, this argument cannot be found in the ratio decidendi of the
case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA
9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n
offense shall be an extraditable offense if it is punishable under the laws in both
Contracting Parties x x x,"79 and thereby concluding that while the Philippines has
criminalized under RA 9851 the acts defined in the Rome Statute as war crimes,
genocide and other crimes against humanity, there is no similar legislation in the US.
It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in
the federal courts for an international crime unless Congress adopts a law defining
and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law
criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United
States Code Annotated (USCA) provides for the criminal offense of "war crimes"
which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits
a war crime, in any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of years, or both, and if
death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that
the person committing such war crime or the victim of such war crime is a
member of the Armed Forces of the United States or a national of the United
States (as defined in Section 101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term "war crime" means any
conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such convention
to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague
Convention IV, Respecting the Laws and Customs of War on Land,
signed 18 October 1907;
US Law
1091. Genocide
(a) Basic Offense Whoever,
whether in the time of peace or in
time of war and with specific
intent to destroy, in whole or in
substantial part, a national,
ethnic, racial or religious group
as such
xxxx
(c) In the case of an
armed conflict not of an
international character,
serious violations of article
3 common to the four
Geneva Conventions of
12 August 1949, namely,
any of the following acts
committed against
persons taking no active
part in the hostilities,
including members of
armed forces who have
laid down their arms and
those placed hors de
combat by sickness,
wounds, detention or any
other cause:
xxxx
(d) Paragraph 2 (c)
applies to armed conflicts
not of an international
character and thus does
not apply to situations of
internal disturbances and
tensions, such as riots,
isolated and sporadic acts
of violence or other acts of
a similar nature.
(e) Other serious
violations of the laws and
customs applicable in
armed conflicts not of an
international character,
within the established
framework of international
law, namely, any of the
following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not present. In
fact, the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction
of the Court and crimes within the Uniform Code of Military Justice that would
expose US personnel to the Court. Since US military lawyers were instrumental in
drafting the elements of crimes outlined in the Rome Statute, they ensured that most
of the crimes were consistent with those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing
military laws.87 x x x
The report went on further to say that "[a]ccording to those involved, the elements of
crimes laid out in the Rome Statute have been part of US military doctrine for
decades."88 Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows
the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The
Paquete Habana89 case already held international law as part of the law of the US, to
wit:
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is no
treaty and no controlling executive or legislative act or judicial decision, resort must
be had to the customs and usages of civilized nations, and, as evidence of these, to
the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.90(Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on
the holding in U.S. v. Hudson,92 only applies to common law and not to the law of
nations or international law.93 Indeed, the Court in U.S. v. Hudson only considered
the question, "whether the Circuit Courts of the United States can exercise a
common law jurisdiction in criminal cases."94 Stated otherwise, there is no common
law crime in the US but this is considerably different from international law.
The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute. 95 In fact,
years later, US courts would apply international law as a source of criminal liability
despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte
Quirin96 the US Supreme Court noted that "[f]rom the very beginning of its history
this Court has recognized and applied the law of war as including that part of the law
of nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals."97 It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the law
of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10,
to define and punish the offense since it has adopted by reference the sufficiently
precise definition of international law. x x x Similarly by the reference in the 15th
Article of War to offenders or offenses that x x x by the law of war may be triable by
such military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by the law
of war x x x, and which may constitutionally be included within that jurisdiction.98 x x
x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has
been held that genocide, war crimes and crimes against humanity have attained the
status of customary international law. Some even go so far as to state that these
crimes have attained the status of jus cogens.99
Customary international law or international custom is a source of international law
as stated in the Statute of the ICJ.100 It is defined as the "general and consistent
practice of states recognized and followed by them from a sense of legal
obligation."101 In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; and opinio juris sive
necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.103 It is demonstrated upon the existence of the following elements:
(1) generality; (2) uniformity and consistency; and (3) duration.104 While, opinio juris,
the psychological element, requires that the state practice or norm "be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it."105
"The term jus cogens means the compelling law."106 Corollary, "a jus cogens norm
holds the highest hierarchical position among all other customary norms and
principles."107 As a result, jus cogens norms are deemed "peremptory and nonderogable."108 When applied to international crimes, "jus cogens crimes have been
deemed so fundamental to the existence of a just international legal order that states
cannot derogate from them, even by agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any
state may exercise jurisdiction over an individual who commits certain heinous and
widely condemned offenses, even when no other recognized basis for jurisdiction
exists."110 "The rationale behind this principle is that the crime committed is so
egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the
crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it
still has both the doctrine of incorporation and universal jurisdiction to try these
crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal,
found in the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to
be obtaining as reflected in this simple reality: As of October 12, 2010, only
114114 States have ratified the Rome Statute, subsequent to its coming into force
eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of
194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute
casts doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does
not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8)
years have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means "a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris] x x x." This
statement contains the two basic elements of custom: the material factor, that is how
the states behave, and the psychological factor or subjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave
the way they do because they consider it obligatory to behave thus or do they do it
only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without it, practice is not
law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally
recognized crimes of genocide, etc. should be handled by a particular international
criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the
psychological element must be deemed non-existent, for an inquiry on why states
behave the way they do presupposes, in the first place, that they are actually
behaving, as a matter of settled and consistent practice, in a certain manner. This
implicitly requires belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.117Like the first element, the second element
has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the
crimes enumerated therein as evidenced by it requiring State consent.118 Even
further, the Rome Statute specifically and unequivocally requires that: "This Statute
is subject to ratification, acceptance or approval by signatory States."119 These
clearly negate the argument that such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee
on Accountability of Public Officers and Investigations, "[t]he power to enter into an
executive agreement is in essence an executive power. This authority of the
President to enter into executive agreements without the concurrence of the