The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
2

maritime baselines of the Philippines as an archipelagic State. This law

3

followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign
4

right of States parties over their territorial sea, the breadth of which, however,
was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in
North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute

now under scrutiny. The change was prompted by the need to make RA 3046
compliant with the terms of the United Nations Convention on the Law of the
Sea (UNCLOS III), which the Philippines ratified on 27 February
5

1984. Among others, UNCLOS III prescribes the water-land ratio, length, and
6

contour of baselines of archipelagic States like the Philippines and sets the
7

deadline for the filing of application for the extended continental

shelf. Complying with these requirements, RA 9522 shortened one baseline,
8

optimized the location of some basepoints around the Philippine archipelago

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

Petitioners, professors of law, law students and a legislator, in their respective

capacities as citizens, taxpayers or x x x legislators, as the case may be, assail
9

the constitutionality of RA 9522 on two principal grounds, namely: (1) RA

9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution, embodying the terms of the Treaty of Paris and ancillary
10 11

treaties, and (2) RA 9522 opens the countrys waters landward of the baselines
12

to maritime passage by all vessels and aircrafts, undermining Philippine

sovereignty and national security, contravening the countrys nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional
provisions. 13

In addition, petitioners contend that RA 9522s treatment of the KIG as

regime of islands not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen. To buttress their argument
14

of territorial diminution, petitioners facially attack RA 9522 for what it

excluded and included its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues

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

Respondents also question the normative force, under international law,

of petitioners assertion that what Spain ceded to the United States under the
Treaty of Paris were the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris.
 We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily

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

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

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

The Ruling of the Court

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

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators

and taxpayers because the petition alleges neither infringement of legislative
prerogative nor misuse of public funds, occasioned by the passage and
15 16

implementation of RA 9522. Nonetheless, we recognize petitioners locus

standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find other litigants possessing a more
direct and specific interest to bring the suit, thus satisfying one of the
requirements for granting citizenship standing. 17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents

seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of
discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners. 18
Respondents submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have,
by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes, and indeed, of acts of other
19

branches of government. Issues of constitutional import are sometimes crafted

20

out of statutes which, while having no bearing on the personal interests of the
petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon
the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national

territory because it discards the pre-UNCLOS III demarcation of Philippine
21

territory under the Treaty of Paris and related treaties, successively encoded in
the definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that
Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris. 22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory.
It is a multilateral treaty regulating, among others, sea-use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive economic
zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits. UNCLOS III was the culmination of decades-long
23

negotiations among United Nations members to codify norms regulating the

conduct of States in the worlds oceans and submarine areas, recognizing coastal
and archipelagic States graduated authority over a limited span of waters and
submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by

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

Article 48. Measurement of the breadth of the territorial

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

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

UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory. Under
traditional international law typology, States acquire (or conversely, lose)
territory through occupation, accretion, cession and prescription, not by
25

executing multilateral treaties on the regulations of sea-use rights or enacting

statutes to comply with the treatys terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law. 26

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522’s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that
area. Petitioners add that the KIGs (and Scarborough Shoals) exclusion from
27

the Philippine archipelagic baselines results in the loss of about 15,000 square
nautical miles of territorial waters, prejudicing the livelihood of subsistence
fishermen. A comparison of the configuration of the baselines drawn under
28

RA 3046 and RA 9522 and the extent of maritime space encompassed by each
law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this
view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at
least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with
UNCLOS IIIs limitation on the maximum length of baselines). Under RA
3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522
as a statutory renunciation of the Philippines claim over the KIG, assuming that
baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial
waters under RA 9522 is similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles, as shown in the
table below: 29

Extent of maritime area Extent of maritime

using RA 3046, as area using RA 9522,

amended, taking into taking into account

account the Treaty of Paris UNCLOS III (in

delimitation (in square square nautical

nautical miles) miles)

Internal or

archipelagic
166,858 171,435
waters

Territorial 274,136 32,106

Sea

Exclusive

Economic
382,669
Zone

TOTAL 440,994 586,210

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

SEC. 2. The baselines in the following areas over which

the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as Regime of Islands under the
Republic of the Philippines consistent with Article 121 of the
United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under
Presidential Decree No. 1596 and

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

supplied)

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

Although the Philippines has consistently claimed sovereignty over the

KIG and the Scarborough Shoal for several decades, these outlying areas are
32

located at an appreciable distance from the nearest shoreline of the Philippine

archipelago, such that any straight baseline loped around them from the
33
nearest basepoint will inevitably depart to an appreciable extent from the
general configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam

Defensor-Santiago, took pains to emphasize the foregoing during the Senate
deliberations:

What we call the Kalayaan Island Group or what the rest of

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

This is called contested islands outside our configuration. We see

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

Similarly, the length of one baseline that RA 3046 drew exceeded

UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to
optimize the location of basepoints using current maps, became imperative as
discussed by respondents:

[T]he amendment of the baselines law was necessary to

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

1. The length of the baseline across Moro Gulf (from Middle of 3

Rock Awash to Tongquil Point) is 140.06 nautical miles x x x.
This exceeds the maximum length allowed under Article 47(2) of
the [UNCLOS III], which states that The length of such baselines
shall not exceed 100 nautical miles, except that up to 3 per cent of
the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints
can be skipped or deleted from the baselines system. This will
enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968,
and not established by geodetic survey methods. Accordingly,
some of the points, particularly along the west coasts of Luzon
down to Palawan were later found to be located either inland or on
water, not on low-water line and drying reefs as prescribed by
Article 47. 35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough
Shoal as Regime[s] of Islands under the Republic of the Philippines consistent
with Article 121 of UNCLOS III manifests the Philippine States responsible
36

observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any naturally formed area of land, surrounded by
water, which is above water at high tide, such as portions of the KIG, qualifies
under the category of regime of islands, whose islands generate their own
applicable maritime zones. 37

Statutory Claim Over Sabah under

RA 5446 Retained

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

Section 2. The definition of the baselines of the territorial

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

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend

that the law unconstitutionally converts internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate that these
passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38

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

Constitution or as archipelagic waters under UNCLOS III (Article 49 [1]), the
39

Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air

space over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends

to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established

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

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

highways for sea lanes passage are now pending in Congress. 41

In the absence of municipal legislation, international law norms, now

codified in UNCLOS III, operate to grant innocent passage rights over the
territorial sea or archipelagic waters, subject to the treatys limitations and
conditions for their exercise. Significantly, the right of innocent passage is a
42

customary international law, thus automatically incorporated in the corpus of

43

Philippine law. No modern State can validly invoke its sovereignty to

44

absolutely forbid innocent passage that is exercised in accordance with

customary international law without risking retaliatory measures from the
international community.

The fact that for archipelagic States, their archipelagic waters are subject
to both the right of innocent passage and sea lanes passage does not place
45

them in lesser footing vis--vis continental coastal States which are subject, in
their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the waters landward
of their baselines, regardless of their depth or distance from the coast, as
archipelagic waters subject to their territorial sovereignty. More importantly,
the recognition of archipelagic States archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as
separate islands under UNCLOS III. Separate islands generate their own
46

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

Petitioners invocation of non-executory constitutional provisions in

Article II (Declaration of Principles and State Policies) must also fail. Our
48

present state of jurisprudence considers the provisions in Article II as mere

legislative guides, which, absent enabling legislation, do not embody judicially
enforceable constitutional rights x x x. Article II provisions serve as guides in
49

formulating and interpreting implementing legislation, as well as in interpreting

executory provisions of the Constitution. Although Oposa v. Factoran treated
50

the right to a healthful and balanced ecology under Section 16 of Article II as

an exception, the present petition lacks factual basis to substantiate the claimed
constitutional violation. The other provisions petitioners cite, relating to the
protection of marine wealth (Article XII, Section 2, paragraph 2 ) and
51

subsistence fishermen (Article XIII, Section 7 ), are not violated by RA 9522.

52

In fact, the demarcation of the baselines enables the Philippines to

delimit its exclusive economic zone, reserving solely to the Philippines the
exploitation of all living and non-living resources within such zone. Such a
maritime delineation binds the international community since the delineation is
in strict observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will
refuse to be bound by it.
 UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space the exclusive economic zone
in waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to
200 nautical miles. UNCLOS III, however, preserves the traditional freedom of
53

navigation of other States that attached to this zone beyond the territorial sea
before UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS
III, Congress was not bound to pass RA 9522. We have looked at the relevant
54

provision of UNCLOS III and we find petitioners reading plausible.

55

Nevertheless, the prerogative of choosing this option belongs to Congress, not

to this Court. Moreover, the luxury of choosing this option comes at a very
steep price. Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the
countrys case in any international dispute over Philippine maritime space.
These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the

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

WHEREFORE, we DISMISS the petition.

G.R. No. 171182 August 23, 2012

UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN,
RUBEN P. ASPIRAS, EMMANUEL P. BELLO, WILFREDO P. DAVID, CASIANO S.
ABRIGO, and JOSEFINA R. LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as Presiding Judge of the Regional Trial
Court of Quezon City, Branch 80, STERN BUILDERS, INC., and SERVILLANO
DELA CRUZ, Respondents.
DECISION
BERSAMIN, J.:

Trial judges should not immediately issue writs of execution or garnishment against
the Government or any of its subdivisions, agencies and instrumentalities to enforce
money judgments. They should bear in mind that the primary jurisdiction to
examine, audit and settle all claims of any sort due from the Government or any of
its subdivisions, agencies and instrumentalities pertains to the Commission on Audit
(COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code of the
Philippines).

The Case
On appeal by the University of the Philippines and its then incumbent officials
(collectively, the UP) is the decision promulgated on September 16, 2005,2 whereby
the Court of Appeals (CA) upheld the order of the Regional Trial Court (RTC), Branch
80, in Quezon City that directed the garnishment of public funds amounting to ₱
16,370,191.74 belonging to the UP to satisfy the writ of execution issued to enforce
the already final and executory judgment against the UP.
Antecedents
On August 30, 1990, the UP, through its then President Jose V. Abueva, entered into
a General Construction Agreement with respondent Stern Builders Corporation
(Stern Builders), represented by its President and General Manager Servillano dela
Cruz, for the construction of the extension building and the renovation of the College
of Arts and Sciences Building in the campus of the University of the Philippines in
Los Baños (UPLB).3
In the course of the implementation of the contract, Stern Builders submitted three
progress billings corresponding to the work accomplished, but the UP paid only two
of the billings. The third billing worth ₱ 273,729.47 was not paid due to its
disallowance by the Commission on Audit (COA). Despite the lifting of the
disallowance, the UP failed to pay the billing, prompting Stern Builders and dela
Cruz to sue the UP and its co-respondent officials to collect the unpaid billing and to
recover various damages. The suit, entitled Stern Builders Corporation and Servillano
R. Dela Cruz v. University of the Philippines Systems, Jose V. Abueva, Raul P. de
Guzman, Ruben P. Aspiras, Emmanuel P. Bello, Wilfredo P. David, Casiano S. Abrigo,
and Josefina R. Licuanan, was docketed as Civil Case No. Q-93-14971 of the Regional
Trial Court in Quezon City (RTC).4
After trial, on November 28, 2001, the RTC rendered its decision in favor of the
plaintiffs,5 viz:
Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of the
plaintiff and against the defendants ordering the latter to pay plaintiff, jointly and
severally, the following, to wit:
1. ₱ 503,462.74 amount of the third billing, additional accomplished work and
retention money
2. ₱ 5,716,729.00 in actual damages
3. ₱ 10,000,000.00 in moral damages
4. ₱ 150,000.00 and ₱ 1,500.00 per appearance as attorney’s fees; and
5. Costs of suit.
SO ORDERED.
Following the RTC’s denial of its motion for reconsideration on May 7, 2002,6 the UP
filed a notice of appeal on June 3, 2002. Stern Builders and dela Cruz opposed the
notice of appeal on the ground of its filing being belated, and moved for the
execution of the decision. The UP countered that the notice of appeal was filed
within the reglementary period because the UP’s Office of Legal Affairs (OLS) in
Diliman, Quezon City received the order of denial only on May 31, 2002. On
September 26, 2002, the RTC denied due course to the notice of appeal for having
been filed out of time and granted the private respondents’ motion for execution.8
The RTC issued the writ of execution on October 4, 2002,9 and the sheriff of the RTC
served the writ of execution and notice of demand upon the UP, through its counsel,
on October 9, 2002.10 The UP filed an urgent motion to reconsider the order dated
September 26, 2002, to quash the writ of execution dated October 4, 2002, and to
restrain the proceedings.11 However, the RTC denied the urgent motion on April 1,
2003.12
On June 24, 2003, the UP assailed the denial of due course to its appeal through a
petition for certiorari in the Court of Appeals (CA), docketed as CA-G.R. No. 77395.13
On February 24, 2004, the CA dismissed the petition for certiorari upon finding that
the UP’s notice of appeal had been filed late,14 stating:
Records clearly show that petitioners received a copy of the Decision dated
November 28, 2001 and January 7, 2002, thus, they had until January 22, 2002
within which to file their appeal. On January 16, 2002 or after the lapse of nine (9)
days, petitioners through their counsel Atty. Nolasco filed a Motion for
Reconsideration of the aforesaid decision, hence, pursuant to the rules, petitioners
still had six (6) remaining days to file their appeal. As admitted by the petitioners in
their petition (Rollo, p. 25), Atty. Nolasco received a copy of the Order denying their
motion for reconsideration on May 17, 2002, thus, petitioners still has until May 23,
2002 (the remaining six (6) days) within which to file their appeal. Obviously,
petitioners were not able to file their Notice of Appeal on May 23, 2002 as it was
only filed on June 3, 2002.
In view of the said circumstances, We are of the belief and so holds that the Notice of
Appeal filed by the petitioners was really filed out of time, the same having been
filed seventeen (17) days late of the reglementary period. By reason of which, the
decision dated November 28, 2001 had already become final and executory. "Settled
is the rule that the perfection of an appeal in the manner and within the period
permitted by law is not only mandatory but jurisdictional, and failure to perfect that
appeal renders the challenged judgment final and executory. This is not an empty
procedural rule but is grounded on fundamental considerations of public policy and
sound practice." (Ram’s Studio and Photographic Equipment, Inc. vs. Court of
Appeals, 346 SCRA 691, 696). Indeed, Atty. Nolasco received the order of denial of
the Motion for Reconsideration on May 17, 2002 but filed a Notice of Appeal only on
June 3, 3003. As such, the decision of the lower court ipso facto became final when
no appeal was perfected after the lapse of the reglementary period. This procedural
caveat cannot be trifled with, not even by the High Court.15
The UP sought a reconsideration, but the CA denied the UP’s motion for
reconsideration on April 19, 2004.16
On May 11, 2004, the UP appealed to the Court by petition for review
on certiorari (G.R. No. 163501).
On June 23, 2004, the Court denied the petition for review.17 The UP moved for the
reconsideration of the denial of its petition for review on August 29, 2004,18 but the
Court denied the motion on October 6, 2004.19 The denial became final and
executory on November 12, 2004.20
In the meanwhile that the UP was exhausting the available remedies to overturn the
denial of due course to the appeal and the issuance of the writ of execution, Stern
Builders and dela Cruz filed in the RTC their motions for execution despite their
previous motion having already been granted and despite the writ of execution
having already issued. On June 11, 2003, the RTC granted another motion for
execution filed on May 9, 2003 (although the RTC had already issued the writ of
execution on October 4, 2002).21
On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of
garnishment on the UP’s depository banks, namely: Land Bank of the Philippines
(Buendia Branch) and the Development Bank of the Philippines (DBP),
Commonwealth Branch.22 The UP assailed the garnishment through an urgent
motion to quash the notices of garnishment;23 and a motion to quash the writ of
execution dated May 9, 2003.24
On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance of
a release order.25
On October 14, 2003, the RTC denied the UP’s urgent motion to quash, and granted
Stern Builders and dela Cruz’s ex parte motion for issuance of a release order.26
The UP moved for the reconsideration of the order of October 14, 2003, but the RTC
denied the motion on November 7, 2003.27
On January 12, 2004, Stern Builders and dela Cruz again sought the release of the
garnished funds.28 Despite the UP’s opposition,29 the RTC granted the motion to
release the garnished funds on March 16, 2004.30 On April 20, 2004, however, the
RTC held in abeyance the enforcement of the writs of execution issued on October 4,
2002 and June 3, 2003 and all the ensuing notices of garnishment, citing Section 4,
Rule 52, Rules of Court, which provided that the pendency of a timely motion for
reconsideration stayed the execution of the judgment.31
On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon,
authorized the release of the garnished funds of the UP,32 to wit:
WHEREFORE, premises considered, there being no more legal impediment for the
release of the garnished amount in satisfaction of the judgment award in the instant
case, let the amount garnished be immediately released by the Development Bank of
the Philippines, Commonwealth Branch, Quezon City in favor of the plaintiff.
SO ORDERED.

The UP was served on January 3, 2005 with the order of December 21, 2004
directing DBP to release the garnished funds.33
On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct
contempt of court for its non-compliance with the order of release.34
Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA to
challenge the jurisdiction of the RTC in issuing the order of December 21, 2004 (CA-
G.R. CV No. 88125).35 Aside from raising the denial of due process, the UP averred
that the RTC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that there was no longer any legal impediment to the release of
the garnished funds. The UP argued that government funds and properties could not
be seized by virtue of writs of execution or garnishment, as held in Department of
Agriculture v. National Labor Relations Commission,36 and citing Section 84 of
Presidential Decree No. 1445 to the effect that "revenue funds shall not be paid out
of any public treasury or depository except in pursuance of an appropriation law or
other specific statutory authority;" and that the order of garnishment clashed with
the ruling in University of the Philippines Board of Regents v. Ligot-Telan37 to the
effect that the funds belonging to the UP were public funds.
On January 19, 2005, the CA issued a temporary restraining order (TRO) upon
application by the UP.38
On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended
motion for sheriff’s assistance to implement the release order dated December 21,
2004, stating that the 60-day period of the TRO of the CA had already lapsed.39 The
UP opposed the amended motion and countered that the implementation of the
release order be suspended.40
On May 3, 2005, the RTC granted the amended motion for sheriff’s assistance and
directed the sheriff to proceed to the DBP to receive the check in satisfaction of the
judgment.41
The UP sought the reconsideration of the order of May 3, 2005.42
On May 16, 2005, DBP filed a motion to consign the check representing the
judgment award and to dismiss the motion to cite its officials in contempt of court.43
On May 23, 2005, the UP presented a motion to withhold the release of the payment
of the judgment award.44
On July 8, 2005, the RTC resolved all the pending matters,45 noting that the DBP had
already delivered to the sheriff Manager’s Check No. 811941 for ₱ 16,370,191.74
representing the garnished funds payable to the order of Stern Builders and dela
Cruz as its compliance with the RTC’s order dated December 21, 2004.46 However,
the RTC directed in the same order that Stern Builders and dela Cruz should not
encash the check or withdraw its amount pending the final resolution of the UP’s
petition for certiorari, to wit:47
To enable the money represented in the check in question (No. 00008119411) to
earn interest during the pendency of the defendant University of the Philippines
application for a writ of injunction with the Court of Appeals the same may now be
deposited by the plaintiff at the garnishee Bank (Development Bank of the
Philippines), the disposition of the amount represented therein being subject to the
final outcome of the case of the University of the Philippines et al., vs. Hon. Agustin S.
Dizon et al., (CA G.R. 88125) before the Court of Appeals.
Let it be stated herein that the plaintiff is not authorized to encash and withdraw the
amount represented in the check in question and enjoy the same in the fashion of an
owner during the pendency of the case between the parties before the Court of
Appeals which may or may not be resolved in plaintiff’s favor.
With the end in view of seeing to it that the check in question is deposited by the
plaintiff at the Development Bank of the Philippines (garnishee bank), Branch
Sheriff Herlan Velasco is directed to accompany and/or escort the plaintiff in
making the deposit of the check in question.
SO ORDERED.
On September 16, 2005, the CA promulgated its assailed decision dismissing the
UP’s petition for certiorari, ruling that the UP had been given ample opportunity to
contest the motion to direct the DBP to deposit the check in the name of Stern
Builders and dela Cruz; and that the garnished funds could be the proper subject of
garnishment because they had been already earmarked for the project, with the UP
holding the funds only in a fiduciary capacity, viz:

Petitioners next argue that the UP funds may not be seized for execution or
garnishment to satisfy the judgment award. Citing Department of Agriculture vs.
NLRC, University of the Philippines Board of Regents vs. Hon. Ligot-Telan,
petitioners contend that UP deposits at Land Bank and the Development Bank of the
Philippines, being government funds, may not be released absent an appropriations
bill from Congress.
The argument is specious. UP entered into a contract with private respondents for
the expansion and renovation of the Arts and Sciences Building of its campus in Los
Baños, Laguna. Decidedly, there was already an appropriations earmarked for the
said project. The said funds are retained by UP, in a fiduciary capacity, pending
completion of the construction project.
We agree with the trial Court [sic] observation on this score:
"4. Executive Order No. 109 (Directing all National Government Agencies to Revert
Certain Accounts Payable to the Cumulative Result of Operations of the National
Government and for Other Purposes) Section 9. Reversion of Accounts Payable,
provides that, all 1995 and prior years documented accounts payable and all
undocumented accounts regardless of the year they were incurred shall be reverted
to the Cumulative Result of Operations of the National Government (CROU). This
shall apply to accounts payable of all funds, except fiduciary funds, as long as the
purpose for which the funds were created have not been accomplished and accounts
payable under foreign assisted projects for the duration of the said project. In this
regard, the Department of Budget and Management issued Joint-Circular No. 99-6
4.0 (4.3) Procedural Guidelines which provides that all accounts payable that
reverted to the CROU may be considered for payment upon determination thru
administrative process, of the existence, validity and legality of the claim. Thus, the
allegation of the defendants that considering no appropriation for the payment of
any amount awarded to plaintiffs appellee the funds of defendant-appellants may
not be seized pursuant to a writ of execution issued by the regular court is
misplaced. Surely when the defendants and the plaintiff entered into the General
Construction of Agreement there is an amount already allocated by the latter for the
said project which is no longer subject of future appropriation."49
After the CA denied their motion for reconsideration on December 23, 2005, the
petitioners appealed by petition for review.
Matters Arising During the Pendency of the Petition
On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and
dela Cruz’s motion to withdraw the deposit, in consideration of the UP’s intention to
appeal to the CA,50 stating:
Since it appears that the defendants are intending to file a petition for review of the
Court of Appeals resolution in CA-G.R. No. 88125 within the reglementary period of
fifteen (15) days from receipt of resolution, the Court agrees with the defendants
stand that the granting of plaintiffs’ subject motion is premature.
Let it be stated that what the Court meant by its Order dated July 8, 2005 which
states in part that the "disposition of the amount represented therein being subject
to the final outcome of the case of the University of the Philippines, et. al., vs. Hon.
Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the
judgment or resolution of said court has to be final and executory, for if the same
will still be elevated to the Supreme Court, it will not attain finality yet until the
highest court has rendered its own final judgment or resolution.51
However, on January 22, 2007, the UP filed an Urgent Application for A Temporary
Restraining Order and/or A Writ of Preliminary Injunction,52 averring that on January
3, 2007, Judge Maria Theresa dela Torre-Yadao (who had meanwhile replaced Judge
Dizon upon the latter’s appointment to the CA) had issued another order allowing
Stern Builders and dela Cruz to withdraw the deposit,53 to wit:
It bears stressing that defendants’ liability for the payment of the judgment
obligation has become indubitable due to the final and executory nature of the
Decision dated November 28, 2001. Insofar as the payment of the [sic] judgment
obligation is concerned, the Court believes that there is nothing more the defendant
can do to escape liability. It is observed that there is nothing more the defendant can
do to escape liability. It is observed that defendant U.P. System had already
exhausted all its legal remedies to overturn, set aside or modify the decision (dated
November 28, 2001( rendered against it. The way the Court sees it, defendant U.P.
System’s petition before the Supreme Court concerns only with the manner by
which said judgment award should be satisfied. It has nothing to do with the legality
or propriety thereof, although it prays for the deletion of [sic] reduction of the
award of moral damages.
It must be emphasized that this Court’s finding, i.e., that there was sufficient
appropriation earmarked for the project, was upheld by the Court of Appeals in its
decision dated September 16, 2005. Being a finding of fact, the Supreme Court will,
ordinarily, not disturb the same was said Court is not a trier of fact. Such being the
case, defendants’ arguments that there was no sufficient appropriation for the
payment of the judgment obligation must fail.

While it is true that the former Presiding Judge of this Court in its Order dated
January 30, 2006 had stated that:
Let it be stated that what the Court meant by its Order dated July 8, 2005 which
states in part that the "disposition of the amount represented therein being subject
to the final outcome of the case of the University of the Philippines, et. al., vs. Hon.
Agustin S. Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the
judgment or resolution of said court has to be final and executory, for if the same
will still be elevated to the Supreme Court, it will not attain finality yet until the
highest court has rendered its own final judgment or resolution.
it should be noted that neither the Court of Appeals nor the Supreme Court issued a
preliminary injunction enjoining the release or withdrawal of the garnished amount.
In fact, in its present petition for review before the Supreme Court, U.P. System has
not prayed for the issuance of a writ of preliminary injunction. Thus, the Court
doubts whether such writ is forthcoming.
The Court honestly believes that if defendants’ petition assailing the Order of this
Court dated December 31, 2004 granting the motion for the release of the garnished
amount was meritorious, the Court of Appeals would have issued a writ of
injunction enjoining the same. Instead, said appellate court not only refused to issue
a wit of preliminary injunction prayed for by U.P. System but denied the petition, as
well.54
The UP contended that Judge Yadao thereby effectively reversed the January 30,
2006 order of Judge Dizon disallowing the withdrawal of the garnished amount until
after the decision in the case would have become final and executory.
Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all
persons acting pursuant to her authority from enforcing her order of January 3,
2007,55 it appears that on January 16, 2007, or prior to the issuance of the TRO, she
had already directed the DBP to forthwith release the garnished amount to Stern
Builders and dela Cruz; 56 and that DBP had forthwith complied with the order on
January 17, 2007 upon the sheriff’s service of the order of Judge Yadao.57
These intervening developments impelled the UP to file in this Court a supplemental
petition on January 26, 2007,58alleging that the RTC (Judge Yadao) gravely erred in
ordering the immediate release of the garnished amount despite the pendency of
the petition for review in this Court.
The UP filed a second supplemental petition59 after the RTC (Judge Yadao) denied
the UP’s motion for the redeposit of the withdrawn amount on April 10, 2007,60 to
wit:
This resolves defendant U.P. System’s Urgent Motion to Redeposit Judgment Award
praying that plaintiffs be directed to redeposit the judgment award to DBP pursuant
to the Temporary Restraining Order issued by the Supreme Court. Plaintiffs
opposed the motion and countered that the Temporary Restraining Order issued by
the Supreme Court has become moot and academic considering that the act sought
to be restrained by it has already been performed. They also alleged that the
redeposit of the judgment award was no longer feasible as they have already spent
the same.
It bears stressing, if only to set the record straight, that this Court did not – in its
Order dated January 3, 2007 (the implementation of which was restrained by the
Supreme Court in its Resolution dated January 24, 2002) – direct that that garnished
amount "be deposited with the garnishee bank (Development Bank of the
Philippines)". In the first place, there was no need to order DBP to make such
deposit, as the garnished amount was already deposited in the account of plaintiffs
with the DBP as early as May 13, 2005. What the Court granted in its Order dated
January 3, 2007 was plaintiff’s motion to allow the release of said deposit. It must be
recalled that the Court found plaintiff’s motion meritorious and, at that time, there
was no restraining order or preliminary injunction from either the Court of Appeals
or the Supreme Court which could have enjoined the release of plaintiffs’ deposit.
The Court also took into account the following factors:
a) the Decision in this case had long been final and executory after it was rendered
on November 28, 2001;
b) the propriety of the dismissal of U.P. System’s appeal was upheld by the Supreme
Court;
c) a writ of execution had been issued;
d) defendant U.P. System’s deposit with DBP was garnished pursuant to a lawful
writ of execution issued by the Court; and
e) the garnished amount had already been turned over to the plaintiffs and
deposited in their account with DBP.
The garnished amount, as discussed in the Order dated January 16, 2007, was
already owned by the plaintiffs, having been delivered to them by the Deputy Sheriff
of this Court pursuant to par. (c), Section 9, Rule 39 of the 1997 Rules of Civil
Procedure. Moreover, the judgment obligation has already been fully satisfied as per
Report of the Deputy Sheriff.
Anent the Temporary Restraining Order issued by the Supreme Court, the same has
become functus oficio, having been issued after the garnished amount had been
released to the plaintiffs. The judgment debt was released to the plaintiffs on
January 17, 2007, while the Temporary Restraining Order issued by the Supreme
Court was received by this Court on February 2, 2007. At the time of the issuance of
the Restraining Order, the act sought to be restrained had already been done,
thereby rendering the said Order ineffectual.
After a careful and thorough study of the arguments advanced by the parties, the
Court is of the considered opinion that there is no legal basis to grant defendant U.P.
System’s motion to redeposit the judgment amount. Granting said motion is not only
contrary to law, but it will also render this Court’s final executory judgment
nugatory. Litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that once a judgment has become
final the issue or cause involved therein should be laid to rest. This doctrine of
finality of judgment is grounded on fundamental considerations of public policy and
sound practice. In fact, nothing is more settled in law than that once a judgment
attains finality it thereby becomes immutable and unalterable. It may no longer be
modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of whether
the modification is attempted to be made by the court rendering it or by the highest
court of the land.
WHEREFORE, premises considered, finding defendant U.P. System’s Urgent Motion
to Redeposit Judgment Award devoid of merit, the same is hereby DENIED.
SO ORDERED.
Issues
The UP now submits that:
I
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE
PETITION, ALLOWING IN EFFECT THE GARNISHMENT OF UP FUNDS, WHEN IT
RULED THAT FUNDS HAVE ALREADY BEEN EARMARKED FOR THE
CONSTRUCTION PROJECT; AND THUS, THERE IS NO NEED FOR FURTHER
APPROPRIATIONS.
II
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING
GARNISHMENT OF A STATE UNIVERSITY’S FUNDS IN VIOLATION OF ARTICLE XIV,
SECTION 5(5) OF THE CONSTITUTION.
III
IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW
POWERS OF THIS HONORABLE COURT TO MODIFY, IF NOT TOTALLY DELETE THE
AWARD OF ₱ 10 MILLION AS MORAL DAMAGES TO RESPONDENTS.
IV
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE
RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 3 JANUARY 2007 ON
THE GROUND OF EQUITY AND JUDICIAL COURTESY.
V
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE
RELEASE OF THE JUDGMENT AWARD IN ITS ORDER DATED 16 JANUARY 2007 ON
THE GROUND THAT PETITIONER UNIVERSITY STILL HAS A PENDING MOTION FOR
RECONSIDERATION OF THE ORDER DATED 3 JANUARY 2007.
VI
THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE
REDEPOSIT OF THE GARNISHED AMOUNT TO THE DBP IN VIOLATION OF THE
CLEAR LANGUAGE OF THE SUPREME COURT RESOLUTION DATED 24 JANUARY
2007.
The UP argues that the amount earmarked for the construction project had been
purposely set aside only for the aborted project and did not include incidental
matters like the awards of actual damages, moral damages and attorney’s fees. In
support of its argument, the UP cited Article 12.2 of the General Construction
Agreement, which stipulated that no deductions would be allowed for the payment
of claims, damages, losses and expenses, including attorney’s fees, in case of any
litigation arising out of the performance of the work. The UP insists that the CA
decision was inconsistent with the rulings in Commissioner of Public Highways v.
San Diego61 and Department of Agriculture v. NLRC62 to the effect that government
funds and properties could not be seized under writs of execution or garnishment to
satisfy judgment awards.
Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the
Constitution by allowing the garnishment of UP funds, because the garnishment
resulted in a substantial reduction of the UP’s limited budget allocated for the
remuneration, job satisfaction and fulfillment of the best available teachers; that
Judge Yadao should have exhibited judicial courtesy towards the Court due to the
pendency of the UP’s petition for review; and that she should have also desisted
from declaring that the TRO issued by this Court had become functus officio.
Lastly, the UP states that the awards of actual damages of ₱ 5,716,729.00 and moral
damages of ₱ 10 million should be reduced, if not entirely deleted, due to its being
unconscionable, inequitable and detrimental to public service.
In contrast, Stern Builders and dela Cruz aver that the petition for review was fatally
defective for its failure to mention the other cases upon the same issues pending
between the parties (i.e., CA-G.R. No. 77395 and G.R No. 163501); that the UP was
evidently resorting to forum shopping, and to delaying the satisfaction of the final
judgment by the filing of its petition for review; that the ruling in Commissioner of
Public Works v. San Diego had no application because there was an appropriation
for the project; that the UP retained the funds allotted for the project only in a
fiduciary capacity; that the contract price had been meanwhile adjusted to ₱
22,338,553.25, an amount already more than sufficient to cover the judgment
award; that the UP’s prayer to reduce or delete the award of damages had no factual
basis, because they had been gravely wronged, had been deprived of their source of
income, and had suffered untold miseries, discomfort, humiliation and sleepless
years; that dela Cruz had even been constrained to sell his house, his equipment and
the implements of his trade, and together with his family had been forced to live
miserably because of the wrongful actuations of the UP; and that the RTC correctly
declared the Court’s TRO to be already functus officio by reason of the withdrawal of
the garnished amount from the DBP.
The decisive issues to be considered and passed upon are, therefore:
(a) whether the funds of the UP were the proper subject of garnishment in order to
satisfy the judgment award; and (b) whether the UP’s prayer for the deletion of the
awards of actual damages of ₱ 5,716,729.00, moral damages of ₱ 10,000,000.00 and
attorney’s fees of ₱ 150,000.00 plus ₱ 1,500.00 per appearance could be granted
despite the finality of the judgment of the RTC.
Ruling
The petition for review is meritorious.
I.
UP’s funds, being government funds,
are not subject to garnishment
The UP was founded on June 18, 1908 through Act 1870 to provide advanced
instruction in literature, philosophy, the sciences, and arts, and to give professional
and technical training to deserving students.63 Despite its establishment as a body
corporate,64 the UP remains to be a "chartered institution"65 performing a legitimate
government function. It is an institution of higher learning, not a corporation
established for profit and declaring any dividends.66 In enacting Republic Act No.
9500 (The University of the Philippines Charter of 2008), Congress has declared the
UP as the national university67 "dedicated to the search for truth and knowledge as
well as the development of future leaders."68
Irrefragably, the UP is a government instrumentality,69 performing the State’s
constitutional mandate of promoting quality and accessible education.70 As a
government instrumentality, the UP administers special funds sourced from the fees
and income enumerated under Act No. 1870 and Section 1 of Executive Order No.
714,71 and from the yearly appropriations, to achieve the purposes laid down by
Section 2 of Act 1870, as expanded in Republic Act No. 9500.72 All the funds going
into the possession of the UP, including any interest accruing from the deposit of
such funds in any banking institution, constitute a "special trust fund," the
disbursement of which should always be aligned with the UP’s mission and
purpose,73 and should always be subject to auditing by the COA.74
Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes in
the possession of an agency of the government or of a public officer as trustee, agent
or administrator, or that is received for the fulfillment of some obligation.75 A trust
fund may be utilized only for the "specific purpose for which the trust was created
or the funds received."76
The funds of the UP are government funds that are public in character. They include
the income accruing from the use of real property ceded to the UP that may be spent
only for the attainment of its institutional objectives.77 Hence, the funds subject of
this action could not be validly made the subject of the RTC’s writ of execution or
garnishment.

The adverse judgment rendered against the UP in a suit to which it had impliedly
consented was not immediately enforceable by execution against the UP,78 because
suability of the State did not necessarily mean its liability.79
A marked distinction exists between suability of the State and its liability. As the
Court succinctly stated in Municipality of San Fernando, La Union v. Firme:80
A distinction should first be made between suability and liability.

"Suability depends on the consent of the state to be sued, liability on the applicable
law and the established facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can never be held liable if it
does not first consent to be sued. Liability is not conceded by the mere fact that the
state has allowed itself to be sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to prove, if it can, that the
defendant is liable.
Also, in Republic v. Villasor,81 where the issuance of an alias writ of execution
directed against the funds of the Armed Forces of the Philippines to satisfy a final
and executory judgment was nullified, the Court said:

xxx The universal rule that where the State gives its consent to be sued by private
parties either by general or special law, it may limit claimant’s action "only up to the
completion of proceedings anterior to the stage of execution" and that the power of
the Courts ends when the judgment is rendered, since government funds and
properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements
of public funds must be covered by the corresponding appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law.

The UP correctly submits here that the garnishment of its funds to satisfy the
judgment awards of actual and moral damages (including attorney’s fees) was not
validly made if there was no special appropriation by Congress to cover the liability.
It was, therefore, legally unwarranted for the CA to agree with the RTC’s holding in
the order issued on April 1, 2003 that no appropriation by Congress to allocate and
set aside the payment of the judgment awards was necessary because "there (were)
already an appropriations (sic) earmarked for the said project."82

The CA and the RTC thereby unjustifiably ignored the legal restriction imposed on
the trust funds of the Government and its agencies and instrumentalities to be used
exclusively to fulfill the purposes for which the trusts were created or for which the
funds were received except upon express authorization by Congress or by the head
of a government agency in control of the funds, and subject to pertinent budgetary
laws, rules and regulations.83
Indeed, an appropriation by Congress was required before the judgment that
rendered the UP liable for moral and actual damages (including attorney’s fees)
would be satisfied considering that such monetary liabilities were not covered by
the "appropriations earmarked for the said project." The Constitution strictly
mandated that "(n)o money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."84
II
COA must adjudicate private respondents’ claim
before execution should proceed
The execution of the monetary judgment against the UP was within the primary
jurisdiction of the COA. This was expressly provided in Section 26 of Presidential
Decree No. 1445, to wit:
Section 26. General jurisdiction. - The authority and powers of the Commission shall
extend to and comprehend all matters relating to auditing procedures, systems and
controls, the keeping of the general accounts of the Government, the preservation of
vouchers pertaining thereto for a period of ten years, the examination and
inspection of the books, records, and papers relating to those accounts; and the
audit and settlement of the accounts of all persons respecting funds or property
received or held by them in an accountable capacity, as well as the examination,
audit, and settlement of all debts and claims of any sort due from or owing to the
Government or any of its subdivisions, agencies and instrumentalities. The said
jurisdiction extends to all government-owned or controlled corporations, including
their subsidiaries, and other self-governing boards, commissions, or agencies of the
Government, and as herein prescribed, including non governmental entities
subsidized by the government, those funded by donations through the government,
those required to pay levies or government share, and those for which the
government has put up a counterpart fund or those partly funded by the
government.
It was of no moment that a final and executory decision already validated the claim
against the UP. The settlement of the monetary claim was still subject to the primary
jurisdiction of the COA despite the final decision of the RTC having already validated
the claim.85 As such, Stern Builders and dela Cruz as the claimants had no alternative
except to first seek the approval of the COA of their monetary claim.
On its part, the RTC should have exercised utmost caution, prudence and
judiciousness in dealing with the motions for execution against the UP and the
garnishment of the UP’s funds. The RTC had no authority to direct the immediate
withdrawal of any portion of the garnished funds from the depository banks of the
UP. By eschewing utmost caution, prudence and judiciousness in dealing with the
execution and garnishment, and by authorizing the withdrawal of the garnished
funds of the UP, the RTC acted beyond its jurisdiction, and all its orders and
issuances thereon were void and of no legal effect, specifically: (a) the order Judge
Yadao issued on January 3, 2007 allowing Stern Builders and dela Cruz to withdraw
the deposited garnished amount; (b) the order Judge Yadao issued on January 16,
2007 directing DBP to forthwith release the garnish amount to Stern Builders and
dela Cruz; (c) the sheriff’s report of January 17, 2007 manifesting the full
satisfaction of the writ of execution; and (d) the order of April 10, 2007 deying the
UP’s motion for the redeposit of the withdrawn amount. Hence, such orders and
issuances should be struck down without exception.
Nothing extenuated Judge Yadao’s successive violations of Presidential Decree No.
1445. She was aware of Presidential Decree No. 1445, considering that the Court
circulated to all judges its Administrative Circular No. 10-2000,86 issued on October
25, 2000, enjoining them "to observe utmost caution, prudence and judiciousness in
the issuance of writs of execution to satisfy money judgments against government
agencies and local government units" precisely in order to prevent the
circumvention of Presidential Decree No. 1445, as well as of the rules and
procedures of the COA, to wit:
In order to prevent possible circumvention of the rules and procedures of the
Commission on Audit, judges are hereby enjoined to observe utmost caution,
prudence and judiciousness in the issuance of writs of execution to satisfy
money judgments against government agencies and local government units.
Judges should bear in mind that in Commissioner of Public Highways v. San Diego
(31 SCRA 617, 625 1970), this Court explicitly stated:
"The universal rule that where the State gives its consent to be sued by private
parties either by general or special law, it may limit claimant’s action ‘only up to the
completion of proceedings anterior to the stage of execution’ and that the power of
the Court ends when the judgment is rendered, since government funds and
properties may not be seized under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations of public policy. Disbursements
of public funds must be covered by the corresponding appropriation as required by
law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and
specific objects, as appropriated by law.
Moreover, it is settled jurisprudence that upon determination of State liability,
the prosecution, enforcement or satisfaction thereof must still be pursued in
accordance with the rules and procedures laid down in P.D. No. 1445,
otherwise known as the Government Auditing Code of the Philippines
(Department of Agriculture v. NLRC, 227 SCRA 693, 701-02 1993 citing
Republic vs. Villasor, 54 SCRA 84 1973). All money claims against the
Government must first be filed with the Commission on Audit which must act
upon it within sixty days. Rejection of the claim will authorize the claimant to
elevate the matter to the Supreme Court on certiorari and in effect, sue the
State thereby (P.D. 1445, Sections 49-50).
However, notwithstanding the rule that government properties are not subject to
levy and execution unless otherwise provided for by statute (Republic v. Palacio, 23
SCRA 899 1968; Commissioner of Public Highways v. San Diego, supra) or municipal
ordinance (Municipality of Makati v. Court of Appeals, 190 SCRA 206 1990), the
Court has, in various instances, distinguished between government funds and
properties for public use and those not held for public use. Thus, in Viuda de Tan
Toco v. Municipal Council of Iloilo (49 Phil 52 1926, the Court ruled that "where
property of a municipal or other public corporation is sought to be subjected to
execution to satisfy judgments recovered against such corporation, the question as
to whether such property is leviable or not is to be determined by the usage and
purposes for which it is held." The following can be culled from Viuda de Tan Toco v.
Municipal Council of Iloilo:
1. Properties held for public uses – and generally everything held for
governmental purposes – are not subject to levy and sale under execution
against such corporation. The same rule applies to funds in the hands of a
public officer and taxes due to a municipal corporation.
2. Where a municipal corporation owns in its proprietary capacity, as distinguished
from its public or government capacity, property not used or used for a public
purpose but for quasi-private purposes, it is the general rule that such property may
be seized and sold under execution against the corporation.
3. Property held for public purposes is not subject to execution merely because it is
temporarily used for private purposes. If the public use is wholly abandoned, such
property becomes subject to execution.
This Administrative Circular shall take effect immediately and the Court
Administrator shall see to it that it is faithfully implemented.
Although Judge Yadao pointed out that neither the CA nor the Court had issued as of
then any writ of preliminary injunction to enjoin the release or withdrawal of the
garnished amount, she did not need any writ of injunction from a superior court to
compel her obedience to the law. The Court is disturbed that an experienced judge
like her should look at public laws like Presidential Decree No. 1445 dismissively
instead of loyally following and unquestioningly implementing them. That she did so
turned her court into an oppressive bastion of mindless tyranny instead of having it
as a true haven for the seekers of justice like the UP.
III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application
The UP next pleads that the Court gives due course to its petition for review in the
name of equity in order to reverse or modify the adverse judgment against it despite
its finality. At stake in the UP’s plea for equity was the return of the amount of ₱
16,370,191.74 illegally garnished from its trust funds. Obstructing the plea is the
finality of the judgment based on the supposed tardiness of UP’s appeal, which the
RTC declared on September 26, 2002. The CA upheld the declaration of finality on
February 24, 2004, and the Court itself denied the UP’s petition for review on that
issue on May 11, 2004 (G.R. No. 163501). The denial became final on November 12,
2004.
It is true that a decision that has attained finality becomes immutable and
unalterable, and cannot be modified in any respect,87 even if the modification is
meant to correct erroneous conclusions of fact and law, and whether the
modification is made by the court that rendered it or by this Court as the highest
court of the land.88 Public policy dictates that once a judgment becomes final,
executory and unappealable, the prevailing party should not be deprived of the
fruits of victory by some subterfuge devised by the losing party. Unjustified delay in
the enforcement of such judgment sets at naught the role and purpose of the courts
to resolve justiciable controversies with finality.89Indeed, all litigations must at
some time end, even at the risk of occasional errors.
But the doctrine of immutability of a final judgment has not been absolute, and has
admitted several exceptions, among them: (a) the correction of clerical errors; (b)
the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void
judgments; and (d) whenever circumstances transpire after the finality of the
decision that render its execution unjust and inequitable.90 Moreover, in Heirs of
Maura So v. Obliosca,91 we stated that despite the absence of the preceding
circumstances, the Court is not precluded from brushing aside procedural norms if
only to serve the higher interests of justice and equity. Also, in Gumaru v. Quirino
State College,92 the Court nullified the proceedings and the writ of execution issued
by the RTC for the reason that respondent state college had not been represented in
the litigation by the Office of the Solicitor General.
We rule that the UP’s plea for equity warrants the Court’s exercise of the exceptional
power to disregard the declaration of finality of the judgment of the RTC for being in
clear violation of the UP’s right to due process.
Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of
appeal to be tardy. They based their finding on the fact that only six days remained
of the UP’s reglementary 15-day period within which to file the notice of appeal
because the UP had filed a motion for reconsideration on January 16, 2002 vis-à-vis
the RTC’s decision the UP received on January 7, 2002; and that because the denial
of the motion for reconsideration had been served upon Atty. Felimon D. Nolasco of
the UPLB Legal Office on May 17, 2002, the UP had only until May 23, 2002 within
which to file the notice of appeal.
The UP counters that the service of the denial of the motion for reconsideration
upon Atty. Nolasco was defective considering that its counsel of record was not Atty.
Nolasco of the UPLB Legal Office but the OLS in Diliman, Quezon City; and that the
period of appeal should be reckoned from May 31, 2002, the date when the OLS
received the order. The UP submits that the filing of the notice of appeal on June 3,
2002 was well within the reglementary period to appeal.
We agree with the submission of the UP.
Firstly, the service of the denial of the motion for reconsideration upon Atty.
Nolasco of the UPLB Legal Office was invalid and ineffectual because he was
admittedly not the counsel of record of the UP. The rule is that it is on the counsel
and not the client that the service should be made.93
That counsel was the OLS in Diliman, Quezon City, which was served with the denial
only on May 31, 2002. As such, the running of the remaining period of six days
resumed only on June 1, 2002,94 rendering the filing of the UP’s notice of appeal on
June 3, 2002 timely and well within the remaining days of the UP’s period to appeal.
Verily, the service of the denial of the motion for reconsideration could only be
validly made upon the OLS in Diliman, and no other. The fact that Atty. Nolasco was
in the employ of the UP at the UPLB Legal Office did not render the service upon him
effective. It is settled that where a party has appeared by counsel, service must be
made upon such counsel.95 Service on the party or the party’s employee is not
effective because such notice is not notice in law.96 This is clear enough from Section
2, second paragraph, of Rule 13, Rules of Court, which explicitly states that: "If any
party has appeared by counsel, service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is ordered by the court. Where
one counsel appears for several parties, he shall only be entitled to one copy of any
paper served upon him by the opposite side." As such, the period to appeal resumed
only on June 1, 2002, the date following the service on May 31, 2002 upon the OLS in
Diliman of the copy of the decision of the RTC, not from the date when the UP was
notified.97
Accordingly, the declaration of finality of the judgment of the RTC, being devoid of
factual and legal bases, is set aside.
Secondly, even assuming that the service upon Atty. Nolasco was valid and effective,
such that the remaining period for the UP to take a timely appeal would end by May
23, 2002, it would still not be correct to find that the judgment of the RTC became
final and immutable thereafter due to the notice of appeal being filed too late on
June 3, 2002.
In so declaring the judgment of the RTC as final against the UP, the CA and the RTC
applied the rule contained in the second paragraph of Section 3, Rule 41 of the Rules
of Court to the effect that the filing of a motion for reconsideration interrupted the
running of the period for filing the appeal; and that the period resumed upon notice
of the denial of the motion for reconsideration. For that reason, the CA and the RTC
might not be taken to task for strictly adhering to the rule then prevailing.
However, equity calls for the retroactive application in the UP’s favor of the fresh-
period rule that the Court first announced in mid-September of 2005 through its
ruling in Neypes v. Court of Appeals,98 viz:
To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh
period of 15 days within which to file the notice of appeal in the Regional Trial
Court, counted from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.
The retroactive application of the fresh-period rule, a procedural law that aims "to
regiment or make the appeal period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for reconsideration (whether full or
partial) or any final order or resolution,"99 is impervious to any serious challenge.
This is because there are no vested rights in rules of procedure.100 A law or
regulation is procedural when it prescribes rules and forms of procedure in order
that courts may be able to administer justice.101 It does not come within the legal
conception of a retroactive law, or is not subject of the general rule prohibiting the
retroactive operation of statues, but is given retroactive effect in actions pending
and undetermined at the time of its passage without violating any right of a person
who may feel that he is adversely affected.
We have further said that a procedural rule that is amended for the benefit of
litigants in furtherance of the administration of justice shall be retroactively applied
to likewise favor actions then pending, as equity delights in equality.102 We may
even relax stringent procedural rules in order to serve substantial justice and in the
exercise of this Court’s equity jurisdiction.103 Equity jurisdiction aims to do complete
justice in cases where a court of law is unable to adapt its judgments to the special
circumstances of a case because of the inflexibility of its statutory or legal
jurisdiction.104
It is cogent to add in this regard that to deny the benefit of the fresh-period rule to
the UP would amount to injustice and absurdity – injustice, because the judgment in
question was issued on November 28, 2001 as compared to the judgment in Neypes
that was rendered in 1998; absurdity, because parties receiving notices of judgment
and final orders issued in the year 1998 would enjoy the benefit of the fresh-period
rule but the later rulings of the lower courts like that herein would not.105
Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco
received the denial, the UP’s filing on June 3, 2002 of the notice of appeal was not
tardy within the context of the fresh-period rule. For the UP, the fresh period of 15-
days counted from service of the denial of the motion for reconsideration would end
on June 1, 2002, which was a Saturday. Hence, the UP had until the next working
day, or June 3, 2002, a Monday, within which to appeal, conformably with Section 1
of Rule 22, Rules of Court, which holds that: "If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day."
IV
Awards of monetary damages,
being devoid of factual and legal bases,
did not attain finality and should be deleted
Section 14 of Article VIII of the Constitution prescribes that express findings of fact
and of law should be made in the decision rendered by any court, to wit:
Section 14. No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall
be refused due course or denied without stating the legal basis therefor.
Implementing the constitutional provision in civil actions is Section 1 of Rule
36, Rules of Court, viz:
Section 1. Rendition of judgments and final orders. — A judgment or final order
determining the merits of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court. (1a)
The Constitution and the Rules of Court apparently delineate two main essential
parts of a judgment, namely: the body and the decretal portion. Although the latter
is the controlling part,106 the importance of the former is not to be lightly regarded
because it is there where the court clearly and distinctly states its findings of fact
and of law on which the decision is based. To state it differently, one without the
other is ineffectual and useless. The omission of either inevitably results in a
judgment that violates the letter and the spirit of the Constitution and the Rules of
Court.
The term findings of fact that must be found in the body of the decision refers to
statements of fact, not to conclusions of law.107 Unlike in pleadings where ultimate
facts alone need to be stated, the Constitution and the Rules of Court require not
only that a decision should state the ultimate facts but also that it should specify the
supporting evidentiary facts, for they are what are called the findings of fact.
The importance of the findings of fact and of law cannot be overstated. The reason
and purpose of the Constitution and the Rules of Court in that regard are obviously
to inform the parties why they win or lose, and what their rights and obligations are.
Only thereby is the demand of due process met as to the parties. As Justice Isagani A.
Cruz explained in Nicos Industrial Corporation v. Court of Appeals:108
It is a requirement of due process that the parties to a litigation be informed of how
it was decided, with an explanation of the factual and legal reasons that led to the
conclusions of the court. The court cannot simply say that judgment is rendered in
favor of X and against Y and just leave it at that without any justification whatsoever
for its action. The losing party is entitled to know why he lost, so he may appeal to a
higher court, if permitted, should he believe that the decision should be reversed. A
decision that does not clearly and distinctly state the facts and the law on which it is
based leaves the parties in the dark as to how it was reached and is especially
prejudicial to the losing party, who is unable to pinpoint the possible errors of the
court for review by a higher tribunal.
Here, the decision of the RTC justified the grant of actual and moral damages, and
attorney’s fees in the following terse manner, viz:
xxx The Court is not unmindful that due to defendants’ unjustified refusal to pay
their outstanding obligation to plaintiff, the same suffered losses and incurred
expenses as he was forced to re-mortgage his house and lot located in Quezon City
to Metrobank (Exh. "CC") and BPI Bank just to pay its monetary obligations in the
form of interest and penalties incurred in the course of the construction of the
subject project.109
The statement that "due to defendants’ unjustified refusal to pay their outstanding
obligation to plaintiff, the same suffered losses and incurred expenses as he was
forced to re-mortgage his house and lot located in Quezon City to Metrobank (Exh.
"CC") and BPI Bank just to pay its monetary obligations in the form of interest and
penalties incurred in the course of the construction of the subject project" was only
a conclusion of fact and law that did not comply with the constitutional and
statutory prescription. The statement specified no detailed expenses or losses
constituting the ₱ 5,716,729.00 actual damages sustained by Stern Builders in
relation to the construction project or to other pecuniary hardships. The omission of
such expenses or losses directly indicated that Stern Builders did not prove them at
all, which then contravened Article 2199, Civil Code, the statutory basis for the
award of actual damages, which entitled a person to an adequate compensation only
for such pecuniary loss suffered by him as he has duly proved. As such, the actual
damages allowed by the RTC, being bereft of factual support, were speculative and
whimsical. Without the clear and distinct findings of fact and law, the award
amounted only to an ipse dixit on the part of the RTC,110 and did not attain finality.
There was also no clear and distinct statement of the factual and legal support for
the award of moral damages in the substantial amount of ₱ 10,000,000.00. The
award was thus also speculative and whimsical. Like the actual damages, the moral
damages constituted another judicial ipse dixit, the inevitable consequence of which
was to render the award of moral damages incapable of attaining finality. In
addition, the grant of moral damages in that manner contravened the law that
permitted the recovery of moral damages as the means to assuage "physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury."111 The contravention of
the law was manifest considering that Stern Builders, as an artificial person, was
incapable of experiencing pain and moral sufferings.112 Assuming that in granting
the substantial amount of ₱ 10,000,000.00 as moral damages, the RTC might have
had in mind that dela Cruz had himself suffered mental anguish and anxiety. If that
was the case, then the RTC obviously disregarded his separate and distinct
personality from that of Stern Builders.113 Moreover, his moral and emotional
sufferings as the President of Stern Builders were not the sufferings of Stern
Builders. Lastly, the RTC violated the basic principle that moral damages were not
intended to enrich the plaintiff at the expense of the defendant, but to restore the
plaintiff to his status quo ante as much as possible. Taken together, therefore, all
these considerations exposed the substantial amount of ₱ 10,000,000.00 allowed as
moral damages not only to be factually baseless and legally indefensible, but also to
be unconscionable, inequitable and unreasonable.
Like the actual and moral damages, the ₱ 150,000.00, plus ₱ 1,500.00 per
appearance, granted as attorney’s fees were factually unwarranted and devoid of
legal basis. The general rule is that a successful litigant cannot recover attorney’s
fees as part of the damages to be assessed against the losing party because of the
policy that no premium should be placed on the right to litigate.114 Prior to the
effectivity of the present Civil Code, indeed, such fees could be recovered only when
there was a stipulation to that effect. It was only under the present Civil Code that
the right to collect attorney’s fees in the cases mentioned in Article 2208115 of the
Civil Code came to be recognized.116 Nonetheless, with attorney’s fees being allowed
in the concept of actual damages,117 their amounts must be factually and legally
justified in the body of the decision and not stated for the first time in the decretal
portion.118 Stating the amounts only in the dispositive portion of the judgment is not
enough;119 a rendition of the factual and legal justifications for them must also be
laid out in the body of the decision.120
That the attorney’s fees granted to the private respondents did not satisfy the
foregoing requirement suffices for the Court to undo them.121 The grant was
ineffectual for being contrary to law and public policy, it being clear that the express
findings of fact and law were intended to bring the case within the exception and
thereby justify the award of the attorney’s fees. Devoid of such express findings, the
award was a conclusion without a premise, its basis being improperly left to
speculation and conjecture.122
Nonetheless, the absence of findings of fact and of any statement of the law and
jurisprudence on which the awards of actual and moral damages, as well as of
attorney’s fees, were based was a fatal flaw that invalidated the decision of the RTC
only as to such awards. As the Court declared in Velarde v. Social Justice
Society,123 the failure to comply with the constitutional requirement for a clear and
distinct statement of the supporting facts and law "is a grave abuse of discretion
amounting to lack or excess of jurisdiction" and that "(d)ecisions or orders issued in
careless disregard of the constitutional mandate are a patent nullity and must be
struck down as void."124 The other item granted by the RTC (i.e., ₱ 503,462.74) shall
stand, subject to the action of the COA as stated herein.
WHEREFORE, the Court GRANTS the petition for review on
certiorari; REVERSES and SETS ASIDE the decision of the Court of Appeals under
review; ANNULS the orders for the garnishment of the funds of the University of the
Philippines and for the release of the garnished amount to Stern Builders
Corporation and Servillano dela Cruz; and DELETES from the decision of the
Regional Trial Court dated November 28, 2001 for being void only the awards of
actual damages of ₱ 5,716,729.00, moral damages of ₱ 10,000,000.00, and attorney's
fees of ₱ 150,000.00, plus ₱ 1,500.00 per appearance, in favor of Stern Builders
Corporation and Servillano dela Cruz.
The Court ORDERS Stem Builders Corporation and Servillano dela Cruz to redeposit
the amount of ₱ 16,370,191.74 within 10 days from receipt of this decision.
Costs of suit to be paid by the private respondents.
SO ORDERED.
G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO,
RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham,
ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE
ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in
his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in
Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA,
Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant
of Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US
Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in relation to the grounding of the US
military ship USS Guardian over the Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two huge
coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley
are considered part of Cagayancillo, a remote island municipality of Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306
issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of
the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the
Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a high
diversity of marine life. The 97,030-hectare protected marine park is also an important
habitat for internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant natural habitat for in
situ conservation of biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural beauty and aesthetic
importance.2

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and
future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly
regulated and many human activities are prohibited and penalized or fined, including fishing,
gathering, destroying and disturbing the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for the
said vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port
of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew
liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January
13, 2013 after a brief stop for fuel in Okinawa, Japan. 1âwphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the
ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80
miles east-southeast of Palawan. No cine was injured in the incident, and there have been
no reports of leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret
for the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K.
Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and assured Foreign Affairs Secretazy
Albert F. del Rosario that the United States will provide appropriate compensation for
damage to the reef caused by the ship."6 By March 30, 2013, the US Navy-led salvage team
had finished removing the last piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed
the present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet,
Mark A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry
G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US
respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources),
Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral
Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP
Commandant), collectively the "Philippine respondents."
 The Petition

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

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

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

a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;

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

d. Temporarily define and describe allowable activities of ecotourism, diving,

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

2. After summary hearing, issue a Resolution extending the TEPO until further orders
of the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion

of Nicolas v. Romulo, "to forthwith negotiate with the United States representatives
for the appropriate agreement on [environmental guidelines and environmental
accountability] under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil,
and criminal proceedings against erring officers and individuals to the full extent of
the law, and to make such proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the settlement

of all meritorious claims for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other States, and damages for
personal injury or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and

in the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other
of the disposition of all cases, wherever heard, related to the grounding of the
Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair,

salvage or post salvage plan or plans, including cleanup plans covering the damaged
area of the Tubbataha Reef absent a just settlement approved by the Honorable
Court;

h. Require Respondents to engage in stakeholder and LOU consultations in

accordance with the Local Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the

TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture
towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the

grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in the name of

transparency and accountability such environmental damage assessment, valuation,
and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical

support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and

the Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow
for the exercise of erga omnes rights to a balanced and healthful ecology and for
damages which follow from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
 o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article
VI of the Visiting Forces Agreement unconstitutional for violating equal protection
and/or for violating the preemptory norm of nondiscrimination incorporated as part of
the law of the land under Section 2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other

respects; and

4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners also
filed a motion for early resolution and motion to proceed ex parte against the US
respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon for
the issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already completed; (2) the petition is defective in form
and substance; (3) the petition improperly raises issues involving the VFA between the
Republic of the Philippines and the United States of America; and ( 4) the determination of
the extent of responsibility of the US Government as regards the damage to the Tubbataha
Reefs rests exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the
present petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically,
it is "a party's personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result" of the act being challenged, and "calls for more than just a
generalized grievance."11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount public
interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens
to "a balanced and healthful ecology which, for the first time in our constitutional history, is
solemnly incorporated in the fundamental law." We declared that the right to a balanced and
healthful ecology need not be written in the Constitution for it is assumed, like other civil and
polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is
an issue of transcendental importance with intergenerational implications. Such right carries
1âwphi1

with it the correlative duty to refrain from impairing the environment.14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Thus:

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a
right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature
means the created world in its entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation
has a responsibility to the next to preserve that rhythm and harmony for the full 1:njoyment of
a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to
a sound environment constitutes, at the same time, the performance of their obligation to
ensure the protection of that right for the generations to come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit
in environmental cases. The provision on citizen suits in the Rules "collapses the traditional
rule on personal and direct interest, on the principle that humans are stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental question of
whether this Court has jurisdiction over the US respondents who did not submit any pleading
or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or
non-suability of the State,17is expressly provided in Article XVI of the 1987 Constitution which
states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity
from suit, as follows:

The rule that a state may not be sued without its consent, now · expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II, Section
2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles
of international law under the doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with these principles
in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given
by Justice Holmes that ''there can be no legal right against the authority which makes the law
on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other
practical reasons for the enforcement of the doctrine.

In the case of the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to satisfy the same,. such as the
appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded.
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move to dismiss
the comp.taint on the ground that it has been filed without its consent.19 (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment
which reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of

foreign states from the jurisdiction of local courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of a
foreign sovereign from suit and, with the emergence of democratic states, made to attach not
just to the person of the head of state, or his representative, but also distinctly to the state
itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim -par in parem, non habet imperium
-that all states are soverr~ign equals and cannot assert jurisdiction over one another. The
implication, in broad terms, is that if the judgment against an official would rec 1uire the state
itself to perform an affirmative act to satisfy the award, such as the appropriation of the
amount needed to pay the damages decreed against him, the suit must be regarded as
being against the state itself, although it has not been formally impleaded.21 (Emphasis
supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is
not an immunity from the observance of the law of the territorial sovereign or from ensuing
legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved
a Filipino employed at Clark Air Base who was arrested following a buy-bust operation
conducted by two officers of the US Air Force, and was eventually dismissed from his
employment when he was charged in court for violation of R.A. No. 6425. In a complaint for
damages filed by the said employee against the military officers, the latter moved to dismiss
the case on the ground that the suit was against the US Government which had not given its
consent. The RTC denied the motion but on a petition for certiorari and prohibition filed
before this Court, we reversed the RTC and dismissed the complaint. We held that
petitioners US military officers were acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and thereafter testified against
him at his trial. It follows that for discharging their duties as agents of the United States, they
cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued.

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

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle,
thus:

It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of
his rights, is not a suit against the State within the rule of immunity of the State from suit. In
the same tenor, it has been said that an action at law or suit in equity against a State officer
or the director of a State department on the ground that, while claiming to act for the State,
he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of state immunity cannot be used as
an instrument for perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity
from suit will not apply and may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a
public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice and in bad faith, or beyond the scope of his
authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in
their official capacity as commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the TRNP was committed while they we:re
performing official military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US government, the
suit is deemed to be one against the US itself. The principle of State immunity therefore bars
the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and
Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that
the conduct of the US in this case, when its warship entered a restricted area in violation of
R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He
explained that while historically, warships enjoy sovereign immunity from suit as extensions
of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where
they fail to comply with the rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international rules
on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from
previous declarations by former Presidents Reagan and Clinton, and the US judiciary in the
case of United States v. Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans."28 The UNCLOS is a multilateral
treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the
submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State

sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters is one of the oldest customary
principles of international law.30 The UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial
sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels depending on where the vessel
is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith
which is made to it, the coastal State may require it to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal
State resulting from the non-compliance by a warship or other government ship operated for
non-commercial purposes with the laws and regulations of the coastal State concerning
passage through the territorial sea or with the provisions of this Convention or other rules of
international law.

Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in
this Convention affects the immunities of warships and other government ships operated for
non-commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into
our internal waters with resulting damage to marine resources is one situation in which the
above provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but
despite this the US, the world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the
U.S. delegation ultimately voted against and refrained from signing it due to concerns over
deep seabed mining technology transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of UNCLOS member states
cooperated over the succeeding decade to revise the objection.able provisions. The
revisions satisfied the Clinton administration, which signed the revised Part XI implementing
agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the Part
XI implementing agreement to the Senate requesting its advice and consent. Despite
consistent support from President Clinton, each of his successors, and an ideologically
diverse array of stakeholders, the Senate has since withheld the consent required for the
President to internationally bind the United States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th
and 110th Congresses, its progress continues to be hamstrung by significant pockets of
political ambivalence over U.S. participation in international institutions. Most recently, 111 th
Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate
consideration among his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.34

Justice Carpio invited our attention to the policy statement given by President Reagan on
March 10, 1983 that the US will "recognize the rights of the other , states in the waters off
their coasts, as reflected in the convention [UNCLOS], so long as the rights and freedom of
the United States and others under international law are recognized by such coastal states",
and President Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to encourage other
countries to do likewise." Since Article 31 relates to the "traditional uses of the oceans," and
"if under its policy, the US 'recognize[s] the rights of the other states in the waters off their
coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the
rights of other states in their internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join
the UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed
mining (Part XI) which considers the oceans and deep seabed commonly owned by
mankind," pointing out that such "has nothing to do with its [the US'] acceptance of
customary international rules on navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted on its
official website:

The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent
passage, transit passage, and archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by

enhancing the ability of the US to assert its sovereign rights over the resources of one of the
largest continental shelves in the world. Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to conserve and manage the natural resources in
this Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not
mean that the US will disregard the rights of the Philippines as a Coastal State over its
internal waters and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and
trading partner, which has been actively supporting the country's efforts to preserve our vital
marine resources, would shirk from its obligation to compensate the damage caused by its
warship while transiting our internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply with the UNCLOS directive
for all nations to cooperate in the global task to protect and preserve the marine environment
as provided in Article 197, viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international
rules, standards and recommended practices and procedures consistent with this
Convention, for the protection and preservation of the marine environment, taking into
account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal
States while navigating the.latter's territorial sea, the flag States shall be required to leave
the territorial '::;ea immediately if they flout the laws and regulations of the Coastal State, and
they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they
invoke federal statutes in the US under which agencies of the US have statutorily waived
their immunity to any action. Even under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests" between the US and the
Philippines in the region. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government
in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.36 The invocation of US federal tort laws and
even common law is thus improper considering that it is the VF A which governs disputes
involving US military ships and crew navigating Philippine waters in pursuance of the
objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and
not to special civil actions such as the present petition for issuance of a writ of Kalikasan. In
fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a
person charged with a violation of an environmental law is to be filed separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of
criminal jurisdiction provisions of the VF A to US personnel who may be found responsible
for the grounding of the USS Guardian, would be premature and beyond the province of a
petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules allows the
recovery of damages, including the collection of administrative fines under R.A. No. 10067,
in a separate civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of
a writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.

The reliefs that may be granted under the writ are the following:
 (a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private person or
entity to protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or
entity to monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and
healthful ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become
moot in the sense that the salvage operation sought to be enjoined or restrained had already
been accomplished when petitioners sought recourse from this Court. But insofar as the
directives to Philippine respondents to protect and rehabilitate the coral reef stn icture and
marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian
from the coral reef. However, we are mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and discuss the matter of compensation
for the damage caused by the USS Guardian. The US Embassy has also declared it is
closely coordinating with local scientists and experts in assessing the extent of the damage
and appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As
can be gleaned from the following provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods are encouraged by the
court, to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire
from the parties if they have settled the dispute; otherwise, the court shall immediately refer
the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center
(PMC) unit for purposes of mediation. If not available, the court shall refer the case to the
clerk of court or legal researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt
of notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-
day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of
the pre-trial. Before the scheduled date of continuance, the court may refer the case to the
branch clerk of court for a preliminary conference for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx

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

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the
parties in accordance with law, morals, public order and public policy to protect the right of
the people to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before rendition
of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser,
the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and
remained stuck for four days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for the
damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to review coral reef rehabilitation options
in Tubbataha, based on assessments by Philippine-based marine scientists." The US team
intends to "help assess damage and remediation options, in coordination with the Tubbataha
Management Office, appropriate Philippine government entities, non-governmental
organizations, and scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a

major relief that may be obtained under a judgment rendered in a citizens' suit under the
Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper
reliefs which shall include the protection, preservation or rehabilitation of the environment
and the payment of attorney's fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or restoration of the environment,
the costs of which shall be borne by the violator, or to contribute to a special trust fund for
that purpose subject to the control of the court.
1âw phi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security
interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative-"the political" --
departments of the government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was
duly concurred in by the Philippine Senate and has been recognized as a treaty by the
United States as attested and certified by the duly authorized representative of the United
States government. The VF A being a valid and binding agreement, the parties are required
as a matter of international law to abide by its terms and provisions.42 The present petition
under the Rules is not the proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby
DENIED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 188550 August 19, 2013

DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,

vs.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

DECISION

SERENO, CJ.:

This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch (petitioner) under
Rule 45 of the 1997 Rules of Civil Procedure assailing the Court of Tax Appeals En Banc
(CTA En Banc) Decision2 dated 29 May 2009 and Resolution3 dated 1 July 2009 in C.T.A.
EB No. 456.

THE FACTS

In accordance with Section 28(A)(5)4 of the National Internal Revenue Code (NIRC) of 1997,
petitioner withheld and remitted to respondent on 21 October 2003 the amount of PHP
67,688,553.51, which represented the fifteen percent (15%) branch profit remittance tax
(BPRT) on its regular banking unit (RBU) net income remitted to Deutsche Bank Germany
(DB Germany) for 2002 and prior taxable years.5
Believing that it made an overpayment of the BPRT, petitioner filed with the BIR Large
Taxpayers Assessment and Investigation Division on 4 October 2005 an administrative claim
for refund or issuance of its tax credit certificate in the total amount of PHP 22,562,851.17.
On the same date, petitioner requested from the International Tax Affairs Division (ITAD) a
confirmation of its entitlement to the preferential tax rate of 10% under the RP-Germany Tax
Treaty.6

Alleging the inaction of the BIR on its administrative claim, petitioner filed a Petition for
Review7 with the CTA on 18 October 2005. Petitioner reiterated its claim for the refund or
issuance of its tax credit certificate for the amount of PHP 22,562,851.17 representing the
alleged excess BPRT paid on branch profits remittance to DB Germany.

THE CTA SECOND DIVISION RULING8

After trial on the merits, the CTA Second Division found that petitioner indeed paid the total
amount of PHP 67,688,553.51 representing the 15% BPRT on its RBU profits amounting to
PHP 451,257,023.29 for 2002 and prior taxable years. Records also disclose that for the
year 2003, petitioner remitted to DB Germany the amount of EURO 5,174,847.38 (or PHP
330,175,961.88 at the exchange rate of PHP 63.804:1 EURO), which is net of the 15%
BPRT.

However, the claim of petitioner for a refund was denied on the ground that the application
for a tax treaty relief was not filed with ITAD prior to the payment by the former of its BPRT
and actual remittance of its branch profits to DB Germany, or prior to its availment of the
preferential rate of ten percent (10%) under the RP-Germany Tax Treaty provision. The court
a quo held that petitioner violated the fifteen (15) day period mandated under Section III
paragraph (2) of Revenue Memorandum Order (RMO) No. 1-2000.

Further, the CTA Second Division relied on Mirant (Philippines) Operations Corporation
(formerly Southern Energy Asia-Pacific Operations [Phils.], Inc.) v. Commissioner of Internal
Revenue9 (Mirant) where the CTA En Banc ruled that before the benefits of the tax treaty
may be extended to a foreign corporation wishing to avail itself thereof, the latter should first
invoke the provisions of the tax treaty and prove that they indeed apply to the corporation.

THE CTA EN BANC RULING10

The CTA En Banc affirmed the CTA Second Division’s Decision dated 29 August 2008 and
Resolution dated 14 January 2009. Citing Mirant, the CTA En Banc held that a ruling from
the ITAD of the BIR must be secured prior to the availment of a preferential tax rate under a
tax treaty. Applying the principle of stare decisis et non quieta movere, the CTA En Banc
took into consideration that this Court had denied the Petition in G.R. No. 168531 filed by
Mirant for failure to sufficiently show any reversible error in the assailed judgment.11 The CTA
En Banc ruled that once a case has been decided in one way, any other case involving
exactly the same point at issue should be decided in the same manner.

The court likewise ruled that the 15-day rule for tax treaty relief application under RMO No.
1-2000 cannot be relaxed for petitioner, unlike in CBK Power Company Limited v.
Commissioner of Internal Revenue.12 In that case, the rule was relaxed and the claim for
refund of excess final withholding taxes was partially granted. While it issued a ruling to CBK
Power Company Limited after the payment of withholding taxes, the ITAD did not issue any
ruling to petitioner even if it filed a request for confirmation on 4 October 2005 that the
remittance of branch profits to DB Germany is subject to a preferential tax rate of 10%
pursuant to Article 10 of the RP-Germany Tax Treaty.

ISSUE

This Court is now confronted with the issue of whether the failure to strictly comply with RMO
No. 1-2000 will deprive persons or corporations of the benefit of a tax treaty.

THE COURT’S RULING

The Petition is meritorious.

Under Section 28(A)(5) of the NIRC, any profit remitted to its head office shall be subject to a
tax of 15% based on the total profits applied for or earmarked for remittance without any
deduction of the tax component. However, petitioner invokes paragraph 6, Article 10 of the
RP-Germany Tax Treaty, which provides that where a resident of the Federal Republic of
Germany has a branch in the Republic of the Philippines, this branch may be subjected to
the branch profits remittance tax withheld at source in accordance with Philippine law but
shall not exceed 10% of the gross amount of the profits remitted by that branch to the head
office.

By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch in the
Philippines, remitting to its head office in Germany, the benefit of a preferential rate
equivalent to 10% BPRT.

On the other hand, the BIR issued RMO No. 1-2000, which requires that any availment of the
tax treaty relief must be preceded by an application with ITAD at least 15 days before the
transaction. The Order was issued to streamline the processing of the application of tax
treaty relief in order to improve efficiency and service to the taxpayers. Further, it also aims
to prevent the consequences of an erroneous interpretation and/or application of the treaty
provisions (i.e., filing a claim for a tax refund/credit for the overpayment of taxes or for
deficiency tax liabilities for underpayment).13

The crux of the controversy lies in the implementation of RMO No. 1-2000.

Petitioner argues that, considering that it has met all the conditions under Article 10 of the
RP-Germany Tax Treaty, the CTA erred in denying its claim solely on the basis of RMO No.
1-2000. The filing of a tax treaty relief application is not a condition precedent to the
availment of a preferential tax rate. Further, petitioner posits that, contrary to the ruling of the
CTA, Mirant is not a binding judicial precedent to deny a claim for refund solely on the basis
of noncompliance with RMO No. 1-2000.

Respondent counters that the requirement of prior application under RMO No. 1-2000 is
mandatory in character. RMO No. 1-2000 was issued pursuant to the unquestioned authority
of the Secretary of Finance to promulgate rules and regulations for the effective
implementation of the NIRC. Thus, courts cannot ignore administrative issuances which
partakes the nature of a statute and have in their favor a presumption of legality.

The CTA ruled that prior application for a tax treaty relief is mandatory, and noncompliance
with this prerequisite is fatal to the taxpayer’s availment of the preferential tax rate.
We disagree.

A minute resolution is not a binding precedent

At the outset, this Court’s minute resolution on Mirant is not a binding precedent. The Court
has clarified this matter in Philippine Health Care Providers, Inc. v. Commissioner of Internal
Revenue14 as follows:

It is true that, although contained in a minute resolution, our dismissal of the petition was a
disposition of the merits of the case. When we dismissed the petition, we effectively affirmed
the CA ruling being questioned. As a result, our ruling in that case has already become final.
When a minute resolution denies or dismisses a petition for failure to comply with formal and
substantive requirements, the challenged decision, together with its findings of fact and legal
conclusions, are deemed sustained. But what is its effect on other cases?

With respect to the same subject matter and the same issues concerning the same parties, it
constitutes res judicata. However, if other parties or another subject matter (even with the
same parties and issues) is involved, the minute resolution is not binding precedent. Thus, in
CIR v. Baier-Nickel, the Court noted that a previous case, CIR v. Baier-Nickel involving the
same parties and the same issues, was previously disposed of by the Court thru a minute
resolution dated February 17, 2003 sustaining the ruling of the CA. Nonetheless, the Court
ruled that the previous case "ha(d) no bearing" on the latter case because the two cases
involved different subject matters as they were concerned with the taxable income of
different taxable years.

Besides, there are substantial, not simply formal, distinctions between a minute resolution
and a decision. The constitutional requirement under the first paragraph of Section 14, Article
VIII of the Constitution that the facts and the law on which the judgment is based must be
expressed clearly and distinctly applies only to decisions, not to minute resolutions. A minute
resolution is signed only by the clerk of court by authority of the justices, unlike a decision. It
does not require the certification of the Chief Justice. Moreover, unlike decisions, minute
resolutions are not published in the Philippine Reports. Finally, the proviso of Section 4(3) of
Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or
principles of law which constitute binding precedent in a decision duly signed by the
members of the Court and certified by the Chief Justice. (Emphasis supplied)

Even if we had affirmed the CTA in Mirant, the doctrine laid down in that Decision cannot
bind this Court in cases of a similar nature. There are differences in parties, taxes, taxable
periods, and treaties involved; more importantly, the disposition of that case was made only
through a minute resolution.

Tax Treaty vs. RMO No. 1-2000

Our Constitution provides for adherence to the general principles of international law as part
of the law of the land.15The time-honored international principle of pacta sunt servanda
demands the performance in good faith of treaty obligations on the part of the states that
enter into the agreement. Every treaty in force is binding upon the parties, and obligations
under the treaty must be performed by them in good faith.16 More importantly, treaties have
the force and effect of law in this jurisdiction.17

Tax treaties are entered into "to reconcile the national fiscal legislations of the contracting
parties and, in turn, help the taxpayer avoid simultaneous taxations in two different
jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. further clarifies that "tax conventions are
drafted with a view towards the elimination of international juridical double taxation, which is
defined as the imposition of comparable taxes in two or more states on the same taxpayer in
respect of the same subject matter and for identical periods. The apparent rationale for doing
away with double taxation is to encourage the free flow of goods and services and the
movement of capital, technology and persons between countries, conditions deemed vital in
creating robust and dynamic economies. Foreign investments will only thrive in a fairly
predictable and reasonable international investment climate and the protection against
double taxation is crucial in creating such a climate."19

Simply put, tax treaties are entered into to minimize, if not eliminate the harshness of
international juridical double taxation, which is why they are also known as double tax treaty
or double tax agreements.

"A state that has contracted valid international obligations is bound to make in its legislations
those modifications that may be necessary to ensure the fulfillment of the obligations
undertaken."20 Thus, laws and issuances must ensure that the reliefs granted under tax
treaties are accorded to the parties entitled thereto. The BIR must not impose additional
requirements that would negate the availment of the reliefs provided for under international
agreements. More so, when the RP-Germany Tax Treaty does not provide for any pre-
requisite for the availment of the benefits under said agreement.

Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which would indicate a
deprivation of entitlement to a tax treaty relief for failure to comply with the 15-day period. We
recognize the clear intention of the BIR in implementing RMO No. 1-2000, but the CTA’s
outright denial of a tax treaty relief for failure to strictly comply with the prescribed period is
not in harmony with the objectives of the contracting state to ensure that the benefits granted
under tax treaties are enjoyed by duly entitled persons or corporations.

Bearing in mind the rationale of tax treaties, the period of application for the availment of tax
treaty relief as required by RMO No. 1-2000 should not operate to divest entitlement to the
relief as it would constitute a violation of the duty required by good faith in complying with a
tax treaty. The denial of the availment of tax relief for the failure of a taxpayer to apply within
the prescribed period under the administrative issuance would impair the value of the tax
treaty. At most, the application for a tax treaty relief from the BIR should merely operate to
confirm the entitlement of the taxpayer to the relief.

The obligation to comply with a tax treaty must take precedence over the objective of RMO
No. 1-2000. Logically, noncompliance with tax treaties has negative implications on
1âwphi1

international relations, and unduly discourages foreign investors. While the consequences
sought to be prevented by RMO No. 1-2000 involve an administrative procedure, these may
be remedied through other system management processes, e.g., the imposition of a fine or
penalty. But we cannot totally deprive those who are entitled to the benefit of a treaty for
failure to strictly comply with an administrative issuance requiring prior application for tax
treaty relief.

Prior Application vs. Claim for Refund

Again, RMO No. 1-2000 was implemented to obviate any erroneous interpretation and/or
application of the treaty provisions. The objective of the BIR is to forestall assessments
against corporations who erroneously availed themselves of the benefits of the tax treaty but
are not legally entitled thereto, as well as to save such investors from the tedious process of
claims for a refund due to an inaccurate application of the tax treaty provisions. However, as
earlier discussed, noncompliance with the 15-day period for prior application should not
operate to automatically divest entitlement to the tax treaty relief especially in claims for
refund.

The underlying principle of prior application with the BIR becomes moot in refund cases,
such as the present case, where the very basis of the claim is erroneous or there is
excessive payment arising from non-availment of a tax treaty relief at the first instance. In
this case, petitioner should not be faulted for not complying with RMO No. 1-2000 prior to the
transaction. It could not have applied for a tax treaty relief within the period prescribed, or 15
days prior to the payment of its BPRT, precisely because it erroneously paid the BPRT not
on the basis of the preferential tax rate under

the RP-Germany Tax Treaty, but on the regular rate as prescribed by the NIRC. Hence, the
prior application requirement becomes illogical. Therefore, the fact that petitioner invoked the
provisions of the RP-Germany Tax Treaty when it requested for a confirmation from the ITAD
before filing an administrative claim for a refund should be deemed substantial compliance
with RMO No. 1-2000.

Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy for tax recovery
when there has been an erroneous payment of tax. The outright denial of petitioner’s claim
1âwphi1

for a refund, on the sole ground of failure to apply for a tax treaty relief prior to the payment
of the BPRT, would defeat the purpose of Section 229.

Petitioner is entitled to a refund

It is significant to emphasize that petitioner applied – though belatedly – for a tax treaty relief,
in substantial compliance with RMO No. 1-2000. A ruling by the BIR would have confirmed
whether petitioner was entitled to the lower rate of 10% BPRT pursuant to the RP-Germany
Tax Treaty.

Nevertheless, even without the BIR ruling, the CTA Second Division found as follows:

Based on the evidence presented, both documentary and testimonial, petitioner was able to
establish the following facts:

a. That petitioner is a branch office in the Philippines of Deutsche Bank AG, a

corporation organized and existing under the laws of the Federal Republic of
Germany;

b. That on October 21, 2003, it filed its Monthly Remittance Return of Final Income
Taxes Withheld under BIR Form No. 1601-F and remitted the amount of
₱67,688,553.51 as branch profits remittance tax with the BIR; and

c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having issued a
clearance, petitioner remitted to Frankfurt Head Office the amount of
EUR5,174,847.38 (or ₱330,175,961.88 at 63.804 Peso/Euro) representing its 2002
profits remittance.22
The amount of PHP 67,688,553.51 paid by petitioner represented the 15% BPRT on its RBU
net income, due for remittance to DB Germany amounting to PHP 451,257,023.29 for 2002
and prior taxable years.23

Likewise, both the administrative and the judicial actions were filed within the two-year
prescriptive period pursuant to Section 229 of the NIRC.24

Clearly, there is no reason to deprive petitioner of the benefit of a preferential tax rate of 10%
BPRT in accordance with the RP-Germany Tax Treaty.

Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU net income
amounting to PHP 451,257,023.29 for 2002 and prior taxable years, applying the 10%
BPRT. Thus, it is proper to grant petitioner a refund ofthe difference between the PHP
67,688,553.51 (15% BPRT) and PHP 45,125,702.34 (10% BPRT) or a total of PHP
22,562,851.17.

WHEREFORE, premises considered, the instant Petition is GRANTED. Accordingly, the

Court of Tax Appeals En Banc Decision dated 29 May 2009 and Resolution dated 1 July
2009 are REVERSED and SET ASIDE. A new one is hereby entered ordering respondent
Commissioner of Internal Revenue to refund or issue a tax credit certificate in favor of
petitioner Deutsche Bank AG Manila Branch the amount of TWENTY TWO MILLION FIVE
HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE PESOS AND
SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine currency, representing the
erroneously paid BPRT for 2002 and prior taxable years.

SO ORDERED.

ANG LADLAD LGBT PARTY G.R. No. 190582

represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
 ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

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

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that

others may make different choices choices we would not make for ourselves,
choices we may disapprove of, even choices that may shock or offend or anger
us. However, choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important questions of public
policy is a core value protected by our Bill of Rights. Indeed, our democracy is
built on genuine recognition of, and respect for, diversity and difference in
opinion.
Since ancient times, society has grappled with deep disagreements about
the definitions and demands of morality. In many cases, where moral convictions
are concerned, harmony among those theoretically opposed is an insurmountable
goal. Yet herein lies the paradox philosophical justifications about what is moral
are indispensable and yet at the same time powerless to create agreement. This
Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than
rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with
an application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 2009[2] (the First Assailed
Resolution) and December 16, 2009[3] (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in
the COMELECs refusal to accredit Ang Ladlad as a party-list organization under
Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify

themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the
COMELEC in 2006. The application for accreditation was denied on the ground
that the organization had no substantial membership base. On August 17,
2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a

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

On November 11, 2009, after admitting the petitioners evidence, the

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

x x x a marginalized and under-represented sector that is

particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional,

affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of
the same gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26,
27, Paul wrote:

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

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are

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

As correctly pointed out by the Law Department in its Comment

dated October 2, 2008:

The ANG LADLAD apparently advocates sexual

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

Laws are deemed incorporated in every contract, permit,

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

ANG LADLAD collides with Article 695 of the Civil

Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The

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

Finally to safeguard the morality of the Filipino community, the

Revised Penal Code, as amended, penalizes Immoral doctrines,
obscene publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and

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

1. Those who shall publicly expound or proclaim

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

(b) Those who, in theaters, fairs, cinematographs or any

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

3. Those who shall sell, give away or exhibit films,

prints, engravings, sculpture or literature which are
offensive to morals.

Petitioner should likewise be denied accreditation not only for

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

Furthermore, should this Commission grant the petition, we will be exposing

our youth to an environment that does not conform to the teachings of
our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that older practicing homosexuals are a
threat to the youth. As an agency of the government, ours too is the
States avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to

overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal,
Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman,
breaking the tie and speaking for the majority in his Separate Opinion, upheld the
First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list

system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlads
expressed sexual orientations per se would benefit the nation as a
whole.

Section 2 of the party-list law unequivocally states that the purpose of

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

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

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades

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

xxxx

Thus, even if societys understanding, tolerance, and acceptance of

LGBTs is elevated, there can be no denying that Ladlad constituencies
are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all
citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or

Muslim religious practices. Neither is there any attempt to any
particular religious groups moral rules on Ladlad. Rather, what are
being adopted as moral parameters and precepts are generally accepted
public morals. They are possibly religious-based, but as a society, the
Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by
said religions have sipped [sic] into society and these are not
publicly accepted moral norms.

V. Legal Provisions

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

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlads application for accreditation. Ang Ladlad also sought the issuance ex
parte of a preliminary mandatory injunction against the COMELEC, which had
previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG)

to file its Comment on behalf of COMELEC not later than 12:00 noon of January
11, 2010.[11]Instead of filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010 to
Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in support of
petitioners application.[13] Thus, in order to give COMELEC the opportunity to
fully ventilate its position, we required it to file its own comment.[14] The
COMELEC, through its Law Department, filed its Comment on February 2,
2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary

restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed
a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto
its Comment-in-Intervention.[17] The CHR opined that the denial of Ang
Ladlads petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHRs motion to intervene.
 On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene[18] which motion was granted on February 2, 2010.[19]

The Parties Arguments

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

The OSG concurred with Ang Ladlads petition and argued that the COMELEC
erred in denying petitioners application for registration since there was no basis for
COMELECs allegations of immorality. It also opined that LGBTs have their own
special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported
violations of petitioners freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that the
petition was validly dismissed on moral grounds. It also argued for the first
time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in its
petition when it alleged its national existence contrary to actual verification reports
by COMELECs field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of

the Constitution and Republic Act
No. 7941
 The COMELEC denied Ang Ladlads application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution and RA
7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law or
related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system. As we explicitly
ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,[20] the enumeration of marginalized and under-represented sectors is not
exclusive. The crucial element is not whether a sector is specifically enumerated,
but whether a particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its members and
affiliate organizations. The COMELEC claims that upon verification by its field
personnel, it was shown that save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition
when it alleged its national existence is a new one; previously, the COMELEC
claimed that petitioner was not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections. Nowhere was this ground for
denial of petitioners accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of
petitioners alleged non-existence were already available to the COMELEC prior
to the issuance of the First Assailed Resolution. At best, this is irregular procedure;
at worst, a belated afterthought, a change in respondents theory, and a serious
violation of petitioners right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory

perusal of Ang Ladlads initial petition shows that it never claimed to exist in each
province of the Philippines. Rather, petitioner alleged that the LGBT community
in the Philippines was estimated to constitute at least 670,000 persons; that it had
16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group.[22] Ang Ladlad also represented itself to be a national
LGBT umbrella organization with affiliates around the Philippines composed of
the following LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality
(GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP)
Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
 Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City[23]

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

Against this backdrop, we find that Ang Ladlad has sufficiently

demonstrated its compliance with the legal requirements for accreditation. Indeed,
aside from COMELECs moral objection and the belated allegation of non-
existence, nowhere in the records has the respondent ever found/ruled that Ang
Ladlad is not qualified to register as a party-list organization under any of the
requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to

Accept Ang Ladlads Petition for
Registration

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

Rather than relying on religious belief, the legitimacy of the Assailed

Resolutions should depend, instead, on whether the COMELEC is able to advance
some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways
that have primarily secular effects. As we held in Estrada v. Escritor:[26]
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some
might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed
by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear
that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not
because the conduct is proscribed by the beliefs of one religion or the
other. Although admittedly, moral judgments based on religion might
have a compelling influence on those engaged in public deliberations
over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion
and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner, harmonizing
earth with heaven. Succinctly put, a law could be religious or Kantian
or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass
scrutiny of the religion clauses. x x x Recognizing the religious nature
of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a
strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same
time strive to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for
 accommodation of morality based on religion, provided it does not
offend compelling state interests.[27]

Public Morals as a Ground to Deny

Ang Ladlads Petition for Registration

Respondent suggests that although the moral condemnation of

homosexuality and homosexual conduct may be religion-based, it has long been
transplanted into generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group

consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations
with individuals of the same gender is a bad example. It will bring
down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own
existence.[28]

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

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

x x x A person may be sexually attracted to a person of the same

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

Respondent has failed to explain what societal ills are sought to be

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

We also find the COMELECs reference to purported violations of our

penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil
Code defines a nuisance as any act, omission, establishment, condition of
property, or anything else which shocks, defies, or disregards decency or morality,
the remedies for which are a prosecution under the Revised Penal Code or any
local ordinance, a civil action, or abatement without judicial proceedings.[32] A
violation of Article 201 of the Revised Penal Code, on the other hand, requires
proof beyond reasonable doubt to support a criminal conviction. It hardly needs to
be emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or
criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the
party-list system. The denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather
than a tool to further any substantial public interest. Respondents blanket
justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection
clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which

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

Recent jurisprudence has affirmed that if a law neither burdens a fundamental

right nor targets a suspect class, we will uphold the classification as long as it bears
a rational relationship to some legitimate government end.[35] In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n
our jurisdiction, the standard of analysis of equal protection challenges x x x have
followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution.[37]

The COMELEC posits that the majority of the Philippine population

considers homosexual conduct as immoral and unacceptable, and this constitutes
sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the
Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval
of an unpopular minority is not a legitimate state interest that is sufficient to satisfy
rational basis review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to
the formulation of legislation that would benefit the nation, furthers no legitimate
state interest other than disapproval of or dislike for a disfavored group.
 From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the
same basis as other political parties similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general application should apply with equal
force to LGBTs, and they deserve to participate in the party-list system on the
same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating

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

Freedom of Expression and

Association

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

In a democracy, this common agreement on political and moral ideas is

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

Freedom of expression constitutes one of the essential foundations of a

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

This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions concerning
ones homosexuality and the activity of forming a political association that supports
LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality
does not justify criminalizing same-sex conduct.[41] European and United Nations
judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign
and international texts.[42] To the extent that there is much to learn from other
jurisdictions that have reflected on the issues we face here, such jurisprudence is
certainly illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the Courts
analysis.
 In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular expression of
opinion, public institutions must show that their actions were caused by something
more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and

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

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

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

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

There was no utterance restricted, no publication censored, or any

assembly denied. [COMELEC] simply exercised its authority to review
and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot
be said to be a transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the

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

As to its right to be elected in a genuine periodic election, petitioner

contends that the denial of Ang Ladlads petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through
engagement in the party list elections.

This argument is puerile. The holding of a public office is not a

right but a privilege subject to limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and as advanced by the OSG
itself the moral objection offered by the COMELEC was not a limitation imposed
by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELECs action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other equally-qualified
party-list candidates, we find that there has, indeed, been a transgression of
petitioners fundamental rights.

Non-Discrimination and International

Law

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

Our Decision today is fully in accord with our international obligations to

protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral participation,
enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as

follows:

Article 26

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

In this context, the principle of non-discrimination requires that laws of

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

The UDHR provides:

Article 21.

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

Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without unreasonable
restrictions:

(a) To take part in the conduct of public affairs, directly or

through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which

shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public

service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to

electoral participation is elaborated by the Human Rights Committee in its General
Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:

1. Article 25 of the Covenant recognizes and protects the right

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

xxxx

15. The effective implementation of the right and the

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

We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We
refer now to the petitioners invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),[51] which petitioner declares to reflect binding principles of
international law.

At this time, we are not prepared to declare that these Yogyakarta

Principles contain norms that are obligatory on the Philippines. There are
declarations and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International
Court of Justice.[52] Petitioner has not undertaken any objective and rigorous
analysis of these alleged principles of international law to ascertain their true
status.

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

Using even the most liberal of lenses, these Yogyakarta Principles,

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

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

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the

Commission on Elections dated November 11, 2009 and December 16, 2009 in
SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves
and in behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC.
[ALFI], represented by its President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr.
& Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor
children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco,
Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z.
Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor &
Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children Margarita Racho,
Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi
Racho, Chessie Racho & Laura Racho, Spouses David R. Racho &
Armilyn A. Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor children
Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro,
Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE
T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented
by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE
HEALTH INSURANCE CORPORATION, represented by its President
Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE
LEAGUE OF CITIES OF THE PHILIPPINES, represented by its
President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES
OF THE PHILIPPINES, represented by its President Donato
Marcos,Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr.
Nestor B. Lumicao, M.D., as President and in his personal capacity,
ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M.
Alenton, M.D., as member of the school board and in his personal
capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA,
LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY
C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR.,
Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF THE
HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H.
LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein
represented by its National President, Atty. Ricardo M . Ribo, and in his
own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan,
Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel,
Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. CORAZON J. SOLIMAN, Secretary, Department of
Social Welfare and Development, HON. ARSENIO BALISACAN,
Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration,
THE BOARD OF DIRECTORS, Philippine Health Insurance
Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-
LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY
PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO
PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For
Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary of the Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary of the Department of
Health; HON. ARMIN A. LUISTRO, Secretary of the Department of
Education; and HON. MANUELA. ROXAS II, Secretary of the
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD &
ALA F. PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma
Melegrito, as Executive Director, and in her personal capacity, JOSELYN
B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO,
JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A.
NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L.
POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR.,
Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUEL A. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
PEDROSA, ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA,
ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA
EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO ABAD, Secretary, Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education, Culture and
Sports and HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N.
RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE
T. ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget and
Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our

fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess
his beliefs , and to live as he believes he ought to live, consistent with the
liberty of others and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people
and the development of the country as a whole. The legislative branch, as the
main facet of a representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and substantial solutions
within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that merely casts its
watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society together - the supremacy of the
Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every democratic
society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates2 to
sticker campaigns,3 from rallies by socio-political activists to mass gatherings
organized by members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals
has caused a deep division in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012
(RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the Magnificat
Child Leaming Center, Inc., a domestic, privately-owned educational institution
(Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7 and
several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas,
Inc., and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task
Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,
Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and
members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY)
, an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes cancer
and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of

criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and
correct information on reproductive health programs and service, although it is
against their religious beliefs and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of

the RH Law (RH-IRR),39 provides that skilled health professionals who are
public officers such as, but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health physicians, hospital
staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petitioners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro bona services for
indigent women, under threat of criminal prosecution, imprisonment and other
forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that
the RH Law discriminates against the poor as it makes them the primary target
of the government program that promotes contraceptive use. The petitioners
argue that, rather than promoting reproductive health among the poor, the RH
Law seeks to introduce contraceptives that would effectively reduce the number
of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of
the Constitution. In imposing the penalty of imprisonment and/or fine for "any
violation," it is vague because it does not define the type of conduct to be
treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right
to due process by removing from them (the people) the right to manage their
own affairs and to decide what kind of health facility they shall be and what
kind of services they shall offer."47 It ignores the management prerogative
inherent in corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a
full range of family planning methods is plainly to curtail his right to expound
only his own preferred way of family planning. The petitioners note that
although exemption is granted to institutions owned and operated by religious
groups, they are still forced to refer their patients to another healthcare facility
willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between
the spouses and impedes the right of spouses to mutually decide on matters
pertaining to the overall well-being of their family. In the same breath, it is also
claimed that the parents of a child who has suffered a miscarriage are deprived
of parental authority to determine whether their child should use
contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to the
FDA of the power to determine whether a product is non-abortifacient and to
be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26(
1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to
LGUs and the ARMM under the Local Government Code and R.A . No.
9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino
Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons that
1] there is no actual case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack standing to question
the RH Law; and 3] the petitions are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of
the parties to determine and/or identify the pertinent issues raised by the parties
and the sequence by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the
cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back as
June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late
the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices." Although contraceptive drugs and devices were allowed, they could
not be sold, dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that "no drug or chemical
product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to
any person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be considered
as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate
population growth.67 Among these measures included R.A. No. 6365, approved
on August 16, 1971, entitled "An Act Establishing a National Policy on
Population, Creating the Commission on Population and for Other Purposes. "
The law envisioned that "family planning will be made part of a broad
educational program; safe and effective means will be provided to couples
desiring to space or limit family size; mortality and morbidity rates will be
further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which,
among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made
"available all acceptable methods of contraception, except abortion, to all
Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to one
centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country enacted
R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs
for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept
on galloping at an uncontrollable pace. From a paltry number of just over 27
million Filipinos in 1960, the population of the country reached over 76 million
in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the
problem, the RH Law was enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full range of modem family
planning methods, and to ensure that its objective to provide for the peoples'
right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full
range of modem family planning methods, supplies and services, and for
schools to provide reproductive health education. To put teeth to it, the RH
Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make
effective the current laws on contraception, women's health and population
control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the
right to health of women and the sanctity of life, which the State is mandated to
protect and promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives
per se. As provided under Republic Act No. 5921 and Republic Act No. 4729,
the sale and distribution of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the Petitioners find deplorable
and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials
in the remotest areas of the country - is made to play in the implementation of
the contraception program to the fullest extent possible using taxpayers' money.
The State then will be the funder and provider of all forms of family planning
methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning
methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial
review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.
II.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the
Court to review social legislation like the RH Law by certiorari is "weak," since
the Constitution vests the discretion to implement the constitutional policies
and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
devices that are abortive. It claims that the RH Law cannot be challenged "on
its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions

of the Executive and the Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of government,
which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c) the judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and in bold
lines, the allotment of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. 87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the
same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon questions of wisdom,
justice or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results.89 The Court must
demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point.
The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but,
rather, to make sure that they have acted in consonance with their respective
authorities and rights as mandated of them by the Constitution. If after said
review, the Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review.90 This is in line with
Article VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound
by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement of
the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is
the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subject petitions do not present any
actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not yet
concrete and ripe for adjudication since no one has been charged with violating
any of its provisions and that there is no showing that any of the petitioners'
rights has been adversely affected by its operation.98 In short, it is contended
that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement
of ripeness.101 A question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then
been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct
injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum
of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the issues raised as there
was yet no concrete act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court ruled that the fact of the
law or act in question being not yet effective does not negate ripeness. Concrete
acts under a law are not necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated earlier, when an
action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is
not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are modes
which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues,108 it
has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in
the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the
Constitution.
Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To
dismiss these petitions on the simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive branch of government,
acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health
devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in establishing
the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result
of the challenged governmental act.113 It requires a personal stake in the
outcome of the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of
his own rights. The rule prohibits one from challenging the constitutionality of
the statute grounded on a violation of the rights of third persons not before the
court. This rule is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of
judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in
common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted
liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected
by a Government act, provided a constitutional issue of transcendental
importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government
act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved in
this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being
of this nation, specially the youth; hence, their proper and just determination is
an imperative need. This is in accordance with the well-entrenched principle
that rules of procedure are not inflexible tools designed to hinder or delay, but
to facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather
than promote substantial justice, must always be eschewed. (Emphasis
supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression
and other constitutional rights. Mindful of all these and the fact that the issues
of contraception and reproductive health have already caused deep division
among a broad spectrum of society, the Court entertains no doubt that the
petitions raise issues of transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a
life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do
so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions
for declaratory relief over which the Court has no original
jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the
case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that
it violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one
subject-one title rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population
control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees
it as principally a population control measure. The corpus of the RH Law is
geared towards the reduction of the country's population. While it claims to
save lives and keep our women and children healthy, it also promotes
pregnancy-preventing products. As stated earlier, the RH Law emphasizes the
need to provide Filipinos, especially the poor and the marginalized, with access
to information on the full range of modem family planning products and
methods. These family planning methods, natural or modem, however, are
clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce
the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-
natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe, non-
abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent
pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the
RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation.127 As earlier explained,
"the other positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in
the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis
Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision as
to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect, and
where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical construction of the rule "so as
not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and
the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.

The one subject/one title rule expresses the principle that the title of a law must
not be "so uncertain that the average person reading it would not be informed
of the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to
believe that Congress intentionally sought to deceive the public as to the
contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health
of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the fertilized
ovum to reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion as
they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field, it
is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined
as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a particular
law, custom, or belief. It precedes and transcends any authority or the laws of
men.
In this jurisdiction, the right to life is given more than ample protection. Section
1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in
the Philippines is not of recent vintage. From the enactment of R.A. No. 4729,
entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,138 to the promotion
of male vasectomy and tubal ligation,139 and the ratification of numerous
international agreements, the country has long recognized the need to promote
population control through the use of contraceptives in order to achieve long-
term economic development. Through the years, however, the use of
contraceptives and other family planning methods evolved from being a
component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.140

This has resulted in the enactment of various measures promoting women's

rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-coercion."141 As
will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection
expressly provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided, at
this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the
support of the Government.

Textually, the Constitution affords protection to the unborn from conception.

This is undisputable because before conception, there is no unborn to speak of.
For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded the
scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm. 142 On
the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should
be interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical
terms are employed. As much as possible, the words of the Constitution should
be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum - from the words
of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched express
the objective sought to be attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important condition for the rule of
law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results in
a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human
life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb already
has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US
Supreme Court, said that the State "has respect for human life at all stages in
the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning
of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive? Biologically
categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no
question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes."
At the moment of conception, the nuclei of the ovum and the sperm rupture. As
this happens 23 chromosomes from the ovum combine with 23 chromosomes
of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. Therefore, the fertilized ovum is
human.
Since these questions have been answered affirmatively, we must conclude that
if the fertilized ovum is both alive and human, then, as night follows day, it
must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described
by us here before with the scientific phrase "fertilized ovum" may be beyond
the comprehension of some people; we want to use the simpler phrase "from
the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to
the Commissioner's own admission, he would leave it to Congress to define
when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now
determined by science that life begins from the moment of conception. There
can be no doubt about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the
egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is
for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the
fertilized ovum to reach the uterus. Therefore, if we take the provision as it is
proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum. It
is also apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which
should be left to the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-
life, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclear-
free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask
that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in time.
Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was conceded
that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor. 158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation.
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception as
"the beginning of pregnancy usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used
by medical schools in the Philippines, also concludes that human life (human
person) begins at the moment of fertilization with the union of the egg and the
sperm resulting in the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells
during a process known as fertilization (conception). Fertilization is a sequence
of events that begins with the contact of a sperm (spermatozoon) with a
secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes
to form a new cell. This fertilized ovum, known as a zygote, is a large diploid
cell that is the beginning, or primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
landmark because, under ordinary circumstances, a new, genetically distinct
human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo
now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins. Human lives are sacred
from the moment of conception, and that destroying those new lives is never
licit, no matter what the purported good outcome would be. In terms of biology
and human embryology, a human being begins immediately at fertilization and
after that, there is no point along the continuous line of human embryogenesis
where only a "potential" human being can be posited. Any philosophical, legal,
or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a scientifically
well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a scientifically well-
defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by
Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a letter
of the WHO, he wrote that "medical authorities confirm that the implantation of
the fertilized ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it
is a living human being complete with DNA and 46
168
chromosomes. Implantation has been conceptualized only for convenience
by those who had population control in mind. To adopt it would constitute
textual infidelity not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation of the
fetus at the uterine wall. It would be provocative and further aggravate
religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the
record of the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the protection of
the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it should
be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of
the Revised Penal Code, which penalizes the destruction or expulsion of the
fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal
relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any
law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient
as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from
the moment of fertilization. By using the word " or," the RH Law prohibits not
only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's
womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized ovum to reach
and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum
to reach and be implanted in the mother's womb is an abortifacient (third kind),
the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that
protection will only be given upon implantation, as the petitioners likewise
suggest. Rather, it recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum must be protected the
moment it becomes existent - all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and afforded protection
from the moment the fertilized ovum implants - there is nothing to prevent any
drug or device from killing or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the
Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or
device will not all be used as an abortifacient, since the agency cannot be
present in every instance when the contraceptive product or supply will be
used.171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section that
provides:
Provided, further, That the foregoing offices shall not purchase or acquire by
any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb
in doses of its approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are
well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra
vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law
and should, therefore, be declared invalid. There is danger that the insertion of
the qualifier "primarily" will pave the way for the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization
in violation of Article II, Section 12 of the Constitution. With such qualification
in the RH-IRR, it appears to insinuate that a contraceptive will only be
considered as an "abortifacient" if its sole known effect is abortion or, as
pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those
contraceptives that do not have the primary action of causing abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb, but also those
that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied
in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines and
supplies of all national hospitals.176Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who
never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined
oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177 Given the definition of
"reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of
the RH Law, the petitioners assert that the assailed legislation only seeks to
ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this

regard, the Constitution is replete with provisions protecting and promoting the
right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development,
and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for
their rehabilitation, self-development, and self-reliance, and their integration
into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-
executing. Unless the provisions clearly express the contrary, the provisions of
the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it has always
been, that –
... in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the
will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se.184 In fact, ALFI
prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited when they are dispensed by a
prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away
with it. It is still a good law and its requirements are still in to be complied
with. Thus, the Court agrees with the observation of respondent Lagman that
the effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive
drugs and devices will still require the prescription of a licensed physician.
With R.A. No. 4729 in place, there exists adequate safeguards to ensure the
public that only contraceptives that are safe are made available to the public. As
aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are
not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides in
full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by
a duly licensed drug store or pharmaceutical company and with the prescription
of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female ovum:
and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this
Act shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device shall
be compounded, dispensed, sold or resold, or otherwise be made available to
the consuming public except through a prescription drugstore or hospital
pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or not,
is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the
RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement
and distribution program. The supply and budget allotments shall be based on,
among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it
must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly licensed
drug store or pharmaceutical company and that the actual dispensation of these
contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and
devices must not be indiscriminately done. The public health must be protected
by all possible means. As pointed out by Justice De Castro, a heavy
responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury,
illness or loss of life resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the constitutional
yardstick as expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-
abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be
construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family planning
supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of
hormonal contraceptives, intra-uterine devices, injectables, and other safe,
legal, non-abortifacient and effective family planning products and supplies by
the National Drug Formulary in the EDL is not mandatory. There must first be
a determination by the FDA that they are in fact safe, legal, non-abortifacient
and effective family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives,
whether abortifacient or not, are evil. Some of these are medical practitioners
who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things
dealing with contraceptive use. Petitioner PAX explained that "contraception is
gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms
true love and denies the sovereign rule of God in the transmission of Human
life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes
upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able
to provide for the patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing he refuses to do
without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities
referred to in Section 7; b) public officers involved in the implementation of the
law referred to in Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that
the requirement to refer the matter to another health care service provider is
still considered a compulsion on those objecting healthcare service providers.
They add that compelling them to do the act against their will violates the
Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too
secular that they tend to disregard the religion of Filipinos. Authorizing the use
of contraceptives with abortive effects, mandatory sex education, mandatory
pro-bono reproductive health services to indigents encroach upon the religious
freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to
refer the person seeking reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic
teachings. While the right to act on one's belief may be regulated by the State,
the acts prohibited by the RH Law are passive acts which produce neither harm
nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest
to justify regulation of religious freedom because it mentions no emergency,
risk or threat that endangers state interests. It does not explain how the rights of
the people (to equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make decisions
according to religious convictions, ethics, cultural beliefs and the demands of
responsible parenthood) are being threatened or are not being met as to justify
the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring
would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH Law
even if it contravenes their religious beliefs.195 As the assailed law dangles the
threat of penalty of fine and/or imprisonment in case of non-compliance with
its provisions, the petitioners claim that the RH Law forcing them to provide,
support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of
religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide
that a specific mode or type of contraceptives be used, be it natural or artificial.
It neither imposes nor sanctions any religion or belief.196 They point out that the
RH Law only seeks to serve the public interest by providing accessible,
effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health
guarantees of the Constitution,197 and that what the law only prohibits are those
acts or practices, which deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks to guarantee informed
choice, which is an assurance that no one will be compelled to violate his
religion against his free will.199
The respondents add that by asserting that only natural family planning should
be allowed, the petitioners are effectively going against the constitutional right
to religious freedom, the same right they invoked to assail the constitutionality
of the RH Law.200 In other words, by seeking the declaration that the RH Law
is unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this
on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one
hand, who is allowed to keep silent but is required to refer -and that of the
citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as
the duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity for
would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object
to any information received on account of their attendance in the required
seminars are not compelled to accept information given to them. They are
completely free to reject any information they do not agree with and retain the
freedom to decide on matters of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It
is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial groups to thrive
in a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to whom they call for guidance and enlightenment in
crafting our fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity, the blessings
of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so far
as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions towards
religions such as tax exemption of church property, salary of religious officers
in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle
of separation of Church and State was, thus, enshrined in Article II, Section 6
of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely
believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred
over another, the Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or
to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support
or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures
the free exercise of one's chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But
if the state regulates conduct by enacting, within its power, a general law which
has for its purpose and effect to advance the state's secular goals, the statute is
valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v. Brown,
366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S.
420, 444-5 and 449).

As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that
the guarantee of religious freedom is comprised of two parts: the freedom to
believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel.212
The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
"subject to regulation where the belief is translated into external acts that affect
the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated
"that benevolent neutrality-accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the Philippine Constitution."215 In
the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218Underlying the compelling state interest test is the
notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits.

Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general applicability
may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the
Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the " clear and present danger" test in the maiden case of A merican
Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test
. Victoriano was the only case that employed the "compelling state interest"
test, but as explained previously, the use of the test was inappropriate to the
facts of the case.

The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave
and immediate danger" tests were appropriate as speech has easily discernible
or immediate effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality approach, thus
not appropriate in this jurisdiction. Similar to Victoriano, the present case
involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human
conduct has different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights", in the words of Jefferson.
This right is sacred for an invocation of the Free Exercise Clause is an appeal to
a higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty, thus the
Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until
they are destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while
at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work
on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which,
religious liberty will not be preserved. [Emphases in the original. Underlining
supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For the
Court has declared that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts." 220 The
jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are
the following:
1. The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right
to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to
all methods of family planning, including effective natural and modern
methods which have been proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research
standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the State shall also
provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs
of acceptors and their religious convictions. [Section 3(e), Declaration of
Policy]
4. The State shall promote programs that: (1) enable individuals and couples to
have the number of children they desire with due consideration to the health,
particularly of women, and the resources available and affordable to them and
in accordance with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of family
planning methods that are in accordance with their religious convictions and
cultural beliefs, taking into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and
people's organizations, civil society, faith-based organizations, the religious
sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to
the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to
restrict other groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply
because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives
without being dictated upon by the policies of any one religion. One cannot
refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto
Caesar the things that are Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23
and 24 thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and
services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right
to religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the
other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information
on modem reproductive health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled to perform an
act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free exercise clause is the respect for
the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to
individuals in communicating their beliefs to others as well as the protection for
simply being silent. The Bill of Rights guarantees the liberty of the individual
to utter what is in his mind and the liberty not to utter what is not in his
mind.223 While the RH Law seeks to provide freedom of choice through
informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures
and methods to enable the people to determine the timing, number and spacing
of the birth of their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from
compliance with the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise
of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow and
Clyde Health Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were
involved in abortions.226 The Inner House stated "that if 'participation' were
defined according to whether the person was taking part 'directly' or ' indirectly'
this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be against
their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for
being violative of the freedom of religion. The same applies to Section 23(a)(l)
and (a)(2) in relation to Section 24, considering that in the dissemination of
information regarding programs and services and in the performance of
reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought to live, consistent with the liberty
of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour
to ensure compliance. Without set consequences for either an active violation
or mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when
what is bartered for an effective implementation of a law is a constitutionally-
protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on
a patient because incompatible religious beliefs, is a clear inhibition of a
constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The protection
accorded to other conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public or private
sector. After all, the freedom to believe is intrinsic in every individual and the
protective robe that guarantees its free exercise is not taken off even if one
acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in
the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly
and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
protection clause in the Constitution. Quoting respondent Lagman, if there is
any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as provincial,
city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners
who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not against
the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents,
in defense of the subject provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in
vain. The OSG was curiously silent in the establishment of a more compelling
state interest that would rationalize the curbing of a conscientious objector's
right not to adhere to an action contrary to his religious convictions. During the
oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals. This
is not a free speech matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If
the government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means
the freedom to act or not to act according to what one believes. And this
freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of
an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother decides
to adopt or use the information, product, method or supply given to her or
whether she even decides to become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive use is immediate and
occurs the moment a patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is
the very action being contested as violative of religious freedom, it behooves
the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious
objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with
open willingness and motivation. Suffice it to say, a person who is forced to
perform an act in utter reluctance deserves the protection of the Court as the
last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known
as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact,
reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. -
The State shall, at all times, provide for a comprehensive, culture-sensitive, and
gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's mortality
and morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious convictions, the
rights of the spouses to found a family in accordance with their religious
convictions, and the demands of responsible parenthood, and the right of
women to protection from hazardous drugs, devices, interventions, and
substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy
and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and children
victims and survivors shall be provided with comprehensive health services that
include psychosocial, therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant
to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought
up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x." 235 He, however,
failed to substantiate this point by concrete facts and figures from reputable
sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure
that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be forced
to render reproductive health care procedures if doing it would contravene their
religious beliefs, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In these situations, the right
to life of the mother should be given preference, considering that a referral by a
medical practitioner would amount to a denial of service, resulting to
unnecessarily placing the life of a mother in grave danger. Thus, during the oral
arguments, Atty. Liban, representing CFC, manifested: "the forced referral
clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the
RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily the
mother) when it is medically impossible to save both, provided that no direct
harm is intended to the other. If the above principles are observed, the loss of
the child's life or the mother's life is not intentional and, therefore, unavoidable.
Hence, the doctor would not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been more
than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the assailed
provision bares that the religious freedom of the petitioners is not at all
violated. All the law requires is for would-be spouses to attend a seminar on
parenthood, family planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the seminar,
whether they be natural or artificial. As correctly noted by the OSG, those who
receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject
the information they find unacceptable, and retain the freedom to decide on
matters of family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
violates the provisions of the Constitution by intruding into marital privacy and
autonomy. It argues that it cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it
is the basic social institution. In fact, one article, Article XV, is devoted entirely
to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because
she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures
on any person of legal age on the ground of lack of consent or authorization of
the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal
litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect issues
intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect them " is
equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making.
By giving absolute authority to the spouse who would undergo a procedure,
and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the State, which has not shown
any compelling interest, the State should see to it that they chart their destiny
together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
9710, otherwise known as the "Magna Carta for Women," provides that women
shall have equal rights in all matters relating to marriage and family relations,
including the joint decision on the number and spacing of their children.
Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a
shared responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to protect and
strengthen the family by giving to only one spouse the absolute authority to
decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."244 Marje adopted the ruling of
the US Supreme Court in Griswold v. Connecticut,245 where Justice William O.
Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help
give them life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access
to modern methods of family planning without written consent from their
parents or guardian/s except when the minor is already a parent or has had a
miscarriage.
There can be no other interpretation of this provision except that when a minor
is already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if
she is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say
that their consent is no longer relevant is clearly anti-family. It does not
promote unity in the family. It is an affront to the constitutional mandate to
protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract
of marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern
family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12, Article II of the
Constitution mandates the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a person to make
informed decisions is essential in the protection and maintenance of ones'
health, access to such information with respect to reproductive health must be
allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise
parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
such cases, the life of the minor who has already suffered a miscarriage and
that of the spouse should not be put at grave risk simply for lack of consent. It
should be emphasized that no person should be denied the appropriate medical
care urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be
struck down. By effectively limiting the requirement of parental consent to
"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an
abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents
should not be deprived of their constitutional right of parental authority. To
deny them of this right would be an affront to the constitutional mandate to
protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health education
even if they believe that the same is not suitable to be taught to their
students.250 Citing various studies conducted in the United States and statistical
data gathered in the country, the petitioners aver that the prevalence of
contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the
"feminization of poverty"; the aging of society; and promotion of promiscuity
among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue,
the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support of
the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of parents
in preparing the youth to become productive members of society. Notably, it
places more importance on the role of parents in the development of their
children by recognizing that said role shall be "primary," that is, that the right
of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention of
the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible parenthood, and
that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law
itself provides for the teaching of responsible teenage behavior, gender
sensitivity and physical and emotional changes among adolescents - the Court
finds that the legal mandate provided under the assailed provision supplements,
rather than supplants, the rights and duties of the parents in the moral
development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-
teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection
to their participation in the reproductive health education program provided
under Section 14 of the RH Law on the ground that the same violates their
religious beliefs, the Court reserves its judgment should an actual case be filed
before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them, Section
23 (a)(l) mentions a "private health service provider" among those who may be
held punishable but does not define who is a "private health care service
provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health
service and modern family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health information under
Section 23(a)(l), or from rendering reproductive health procedures under
Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words used in a statute are
vague, words must not only be taken in accordance with their plain meaning
alone, but also in relation to other parts of the statute. It is a rule that every part
of the statute must be interpreted with reference to the context, that is, every
part of it must be construed together with the other parts and kept subservient to
the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other
medical and nursing care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has
undergone training programs under any accredited government and NGO and
who voluntarily renders primarily health care services in the community after
having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health procedures.
Clearly, subject to the qualifications and exemptions earlier discussed, the right
to be exempt from being obligated to render reproductive health service and
modem family planning methods, necessarily includes exemption from being
obligated to give reproductive health information and to render reproductive
health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/
or intentionally provide incorrect information regarding programs and services
on reproductive health including the right to informed choice and access to a
full range of legal, medically-safe, non-abortifacient and effective family
planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with
a copy or model or with established rules; inaccurate, faulty; failing to agree
with the requirements of duty, morality or propriety; and failing to coincide
with the truth. 257 On the other hand, the word "knowingly" means with
awareness or deliberateness that is intentional.258 Used together in relation to
Section 23(a)(l), they connote a sense of malice and ill motive to mislead or
misrepresent the public as to the nature and effect of programs and services on
reproductive health. Public health and safety demand that health care service
providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are
not barred from expressing their own personal opinions regarding the programs
and services on reproductive health, their right must be tempered with the need
to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes
them the primary target of the government program that promotes contraceptive
use . They argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively reduce the
number of the poor. Their bases are the various provisions in the RH Law
dealing with the poor, especially those mentioned in the guiding
principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of justice
and fair play. It has been embodied in a separate clause, however, to provide
for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis
of the due process clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's
duly constituted authorities." "In other words, the concept of equal justice
under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a
legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws to all persons
or things without distinction. What it simply requires is equality among equals
as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must
pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose
of the law; (3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class. "Superficial differences do not make
for a valid classification."
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. "The
classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense
that the members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is achieved, all
those covered by the classification are to be treated equally. The mere fact that
an individual belonging to a class differs from the other members, as long as
that class is substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must
be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to have
children. There is, therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number. While the RH Law admits the
use of contraceptives, it does not, as elucidated above, sanction abortion. As
Section 3(1) explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may
have and does not impose conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks to charge couples with
the duty to have children only if they would raise them in a truly humane way,
a deeper look into its provisions shows that what the law seeks to do is to
simply provide priority to the poor in the implementation of government
programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it
to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial
distinction rests between public educational institutions and private educational
institutions, particularly because there is a need to recognize the academic
freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it
violates the constitutional prohibition against involuntary servitude. They posit
that Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to involuntary servitude because
it requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section
17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the manner
and time of giving pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened
with conditions as it directly involves the very lives of the people. A fortiori,
this power includes the power of Congress263 to prescribe the qualifications for
the practice of professions or trades which affect the public welfare, the public
health, the public morals, and the public safety; and to regulate or control such
professions or trades, even to the point of revoking such right altogether. 264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means of
coercion and compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they
wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render
pro bono service against their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary
incentive imposed by Congress in the furtherance of a perceived legitimate
state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long
as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover health
services and methods. It is the only government entity empowered to render
such services and highly proficient to do so. It should be understood that health
services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711
reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office
to be called the Food and Drug Administration (FDA) in the Department of
Health (DOH). Said Administration shall be under the Office of the Secretary
and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a
consumer or patient, or is found to be imminently injurious, unsafe, dangerous,
or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA
are specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary
powers and functions to make it effective. Pursuant to the principle of
necessary implication, the mandate by Congress to the FDA to ensure public
health and safety by permitting only food and medicines that are safe includes
"service" and "methods." From the declared policy of the RH Law, it is clear
that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards. The philosophy
behind the permitted delegation was explained in Echagaray v. Secretary of
Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the
interest and the time, to provide the required direct and efficacious, not to say
specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested upon
the LGUs the duties and functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such
other functions and responsibilities as are necessary, appropriate, or incidental
to efficient and effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions
and responsibilities that have already been devolved upon them from the
national agencies on the aspect of providing for basic services and facilities in
their respective jurisdictions, paragraph (c) of the same provision provides a
categorical exception of cases involving nationally-funded projects, facilities,
programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those cases
where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government is
that, unless an LGU is particularly designated as the implementing agency, it
has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the Local
Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to
the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when
it comes to national priority programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah
to justify the exemption of the operation of the RH Law in the autonomous
region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of its power to enact
legislation that would benefit the general welfare. After all, despite the
veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in
the relationship between the national and the regional governments.274 Except
for the express and implied limitations imposed on it by the Constitution,
Congress cannot be restricted to exercise its inherent and plenary power to
legislate on all subjects which extends to all matters of general concern or
common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law, 276 suffice it
to say that the Court does not duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural law, the Court is
not obliged to see if a statute, executive issuance or ordinance is in conformity
to it. To begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent rights
espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in
the actual law of the past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a law.
In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural
law is to be used sparingly only in the most peculiar of circumstances involving
rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors
of society cannot be trampled upon in pursuit of what the law hopes to achieve.
After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one
religious group cannot be allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that peace
and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape
the Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long
run. The European and Asian countries, which embarked on such a program
generations ago , are now burdened with ageing populations. The number of
their young workers is dwindling with adverse effects on their economy. These
young workers represent a significant human capital which could have helped
them invigorate, innovate and fuel their economy. These countries are now
trying to reverse their programs, but they are still struggling. For one,
Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young
able-bodied workers. What would happen if the country would be weighed
down by an ageing population and the fewer younger generation would not be
able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not the
same as saying what the law should be or what is the correct rule in a given set
of circumstances. It is not the province of the judiciary to look into the wisdom
of the law nor to question the policies adopted by the legislative branch. Nor is
it the business of this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature to enact
remedial legislation if that would be necessary in the premises. But as always,
with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and
existing legislation and mindful of settled jurisprudence. The Court's function is
therefore limited, and accordingly, must confine itself to the judicial task of
saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or
The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of
the assailed legislation. All the same, the principle of "no-abortion" and "non-
coercion" in the adoption of any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a)
require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-
parents or minors who have suffered a miscarriage access to modem methods
of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any healthcare service provider
who fails and or refuses to disseminate information regarding programs and
services on reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as
they allow a married individual, not in an emergency or life-threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar
as they limit the requirement of parental consent only to elective surgical
procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any healthcare service
provider who fails and/or refuses to refer a patient not in an emergency or life-
threatening case, as defined under Republic Act No. 8344, to another health
care service provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they are
ultra vires and, therefore, null and void for contravening Section 4(a) of the RH
Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended
by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions
of R.A. No. 10354 which have been herein declared as constitutional.
SO ORDERED.

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-
Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of
minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or
93 percent of a total population of 93.3 million – adhering to the teachings of Jesus
Christ.1 Yet, the admonition for husbands to love their wives as their own bodies just as
Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The National Commission on the Role of
Filipino Women (NCRFW) reported that, for the years 2000-2003, "female violence
comprised more than 90o/o of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands
and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups,
Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against
women and their children (VAWC) perpetrated by women's intimate partners, i.e, husband;
former husband; or any person who has or had a sexual or dating relationship, or with whom
the woman has a common child. The law provides for protection orders from the barangay
and the courts to prevent the commission of further acts of VAWC; and outlines the duties
and responsibilities of barangay officials, law enforcers, prosecutors and court personnel,
social workers, health care providers, and other local government officials in responding to
complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being
violative of the equal protection and due process clauses, and an undue delegation of judicial
power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf
of her minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial
Court (RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against
her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim
of physical abuse; emotional, psychological, and economic violence as a result of marital
infidelity on the part of petitioner, with threats of deprivation of custody of her children and of
financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former
was eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17
years old, who is the natural child of petitioner but whom private respondent adopted; Jessie
Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around
her husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and children. He forbade private
respondent to pray, and deliberately isolated her from her friends. When she took up law,
and even when she was already working part time at a law office, petitioner trivialized her
ambitions and prevailed upon her to just stay at home. He was often jealous of the fact that
his attractive wife still catches the eye of some men, at one point threatening that he would
have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of
Robinson's Bank, Bacolod City, who is the godmother of one of their sons. Petitioner
admitted to the affair when private respondent confronted him about it in 2004. He even
boasted to the household help about his sexual relations with said bank manager. Petitioner
told private respondent, though, that he was just using the woman because of their accounts
with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both
arms and shook her with such force that caused bruises and hematoma. At another time,
petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner
sometimes turned his ire on their daughter, Jo-Ann, who had seen the text messages he
sent to his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the
chest and slapped her many times. When private respondent decided to leave petitioner, Jo-
Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her up.
Even the small boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to private
respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair.
On December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was
found by her son bleeding on the floor. Petitioner simply fled the house instead of taking her
to the hospital. Private respondent was hospitalized for about seven (7) days in which time
petitioner never bothered to visit, nor apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost every week and is taking anti-depressant
medications.12

When private respondent informed the management of Robinson's Bank that she intends to
file charges against the bank manager, petitioner got angry with her for jeopardizing the
manager's job. He then packed his things and told private respondent that he was leaving
her for good. He even told private respondent's mother, who lives with them in the family
home, that private respondent should just accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would
take her children from her and deprive her of financial support. Petitioner had previously
warned her that if she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He
is the President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation – of which he and private respondent are both
stockholders. In contrast to the absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of ₱20,000.00 from one corporation only, the
Negros Rotadrill Corporation. Household expenses amounting to not less than ₱200,000.00
a month are paid for by private respondent through the use of credit cards, which, in turn, are
paid by the same corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16 After private respondent confronted him about
the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the
businesses of the corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a quo, petitioner has not
given private respondent an accounting of the businesses the value of which she had helped
raise to millions of pesos.17
 Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March
24, 2006 effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family
home within 24 hours from receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from the conjugal dwelling;
this order is enforceable notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this is
to allow the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner
shall be assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26
March 2006 because of the danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household
help and driver from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the

Petitioner, directly or indirectly, or through other persons, or contact directly or
indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO
in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK
and ordering the Philippine National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed firearms in his possession or
control.

e) To pay full financial support for the Petitioner and the children, including rental of a
house for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he

received from all the corporations from 1 January 2006 up to 31 March 2006, which
himself and as President of the corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be
reported to the court by the Comptroller, copy furnished to the Petitioner, every 15
days of the month, under pain of Indirect Contempt of Court.
 h) To ensure compliance especially with the order granting support pendente lite,
and considering the financial resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the Respondent is ordered to put up
a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an
amended TPO,20 effective for thirty (30) days, which included the following additional
provisions:

i) The petitioners (private respondents herein) are given the continued use of the
Nissan Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in
Parañaque, the continued use of the Starex van in Metro Manila, whenever they go
to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two

sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One
Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of
Fifty Thousand Pesos (Php 50,000.00) per month until the matter of support could be
finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO21 seeking the denial of the renewal of the TPO on the
grounds that it did not (1) comply with the three-day notice rule, and (2) contain a notice of
hearing. He further asked that the TPO be modified by (1) removing one vehicle used by
private respondent and returning the same to its rightful owner, the J-Bros Trading
Corporation, and (2) cancelling or reducing the amount of the bond from ₱5,000,000.00 to a
more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow
him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the
following modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal
belongings of Rosalie and her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the

conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters
to remove Respondent from the conjugal dwelling within eight (8) hours from receipt
of the Temporary Protection Order by his counsel, and that he cannot return until 48
 hours after the petitioners have left, so that the petitioner Rosalie and her
representatives can remove things from the conjugal home and make an inventory of
the household furniture, equipment and other things in the conjugal home, which
shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in
indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the
Clerk of Court within 24 hours from receipt of the Temporary Protection Order by his
counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully
comply with the TPO; and committed new acts of harassment against her and their children,
private respondent filed another application24 for the issuance of a TPO ex parte. She alleged
inter alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of
which the latter was purportedly no longer president, with the end in view of recovering the
Nissan Patrol and Starex Van used by private respondent and the children. A writ of replevin
was served upon private respondent by a group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly
attempted to kidnap him, which incident traumatized the boy resulting in his refusal to go
back to school. On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by
the arm and threatened her.26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for violation of R.A. 7610, also
known as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids
working at the conjugal home of a complaint for kidnapping and illegal detention against
private respondent. This came about after private respondent, armed with a TPO, went to
said home to get her and her children's belongings. Finding some of her things inside a
housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as
follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through

another, acts of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise

communicating in any form with the offended party, either directly or indirectly;
 3) Required to stay away, personally or through his friends, relatives, employees or
agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's
three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and
the petitioner's other household helpers from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the Petitioners are temporarily residing,
as well as from the schools of the three children; Furthermore, that respondent shall
not contact the schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he will have access
to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther
PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and

Php50,000.00 for rental for the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of

Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508
and a Starex van with Plate No. FFD 991 and should the respondent fail to deliver
said vehicles, respondent is ordered to provide the petitioner another vehicle which is
the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of

the conjugal assets, or those real properties in the name of Jesus Chua Garcia only
and those in which the conjugal partnership of gains of the Petitioner Rosalie J.
Garcia and respondent have an interest in, especially the conjugal home located in
No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which
are conjugal assets or those in which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I-
1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to
allow the transfer, sale, encumbrance or disposition of these above-cited properties
to any person, entity or corporation without the personal presence of petitioner
Rosalie J. Garcia, who shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature will be forged in order
to effect the encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for
another ten (10) days, and gave petitioner a period of five (5) days within which to show
cause why the TPO should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its Order31 dated October 6, 2006 that
petitioner be furnished a copy of said motion. Nonetheless, an Order32 dated a day earlier,
October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent
portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30)
days and continuously extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the
required comment to private respondent's motion for renewal of the TPO arguing that it
would only be an "exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals
(CA) a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for being
violative of the due process and the equal protection clauses, and (2) the validity of the
modified TPO issued in the civil case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO)
against the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for
failure of petitioner to raise the constitutional issue in his pleadings before the trial court in
the civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge
to the validity of R.A. 9262 through a petition for prohibition seeking to annul the protection
orders issued by the trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY

THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON
THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE

THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.

III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A.
9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE
TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION
OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of
R.A. 9262, we shall first tackle the propriety of the dismissal by the appellate court of the
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity
so that if not raised in the pleadings, ordinarily it may not be raised in the trial, and if not
raised in the trial court, it will not be considered on appeal.39 Courts will not anticipate a
question of constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod
City, petitioner argues that the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of
1997," family courts have exclusive original jurisdiction to hear and decide cases of domestic
violence against women and children.42 In accordance with said law, the Supreme Court
designated from among the branches of the Regional Trial Courts at least one Family Court
in each of several key cities identified.43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family Courts
shall have original and exclusive jurisdiction over cases of VAWC defined under the latter
law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original
and exclusive jurisdiction over cases of violence against women and their children under this
law. In the absence of such court in the place where the offense was committed, the case
shall be filed in the Regional Trial Court where the crime or any of its elements was
committed at the option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of
authority as a court of general original jurisdiction to pass upon all kinds of cases whether
civil, criminal, special proceedings, land registration, guardianship, naturalization, admiralty
or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the criterion of their conformity to the
fundamental law."46The Constitution vests the power of judicial review or the power to
declare the constitutionality or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in
all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of
inferior courts in cases where such constitutionality happens to be in issue." Section 5,
Article VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could
have been raised at the earliest opportunity in his Opposition to the petition for protection
order before the RTC of Bacolod City, which had jurisdiction to determine the same, subject
to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their
Children, lays down a new kind of procedure requiring the respondent to file an opposition to
the petition and not an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition
which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-
party complaint, but any cause of action which could be the subject thereof may be litigated
in a separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-
claim and third-party complaint are to be excluded from the opposition, the issue of
constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim for
money or other relief which a defending party may have against an opposing party.50 A
cross-claim, on the other hand, is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein.51Finally, a third-party complaint is a claim that a defending party may,
with leave of court, file against a person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.52As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action
that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore,
it is not prohibited from being raised in the opposition in view of the familiar maxim expressio
unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because
the right of private respondent to a protection order is founded solely on the very statute the
validity of which is being attacked53 by petitioner who has sustained, or will sustain, direct
injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all
intents and purposes, a valid cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have
deterred petitioner from raising the same in his Opposition. The question relative to the
constitutionality of a statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the
conduct of a hearing to determine legal issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further
hearing, it may issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be
presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the
form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in
one day, to the extent possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection
order issued is due to expire, the trial court may extend or renew the said order for a period
of thirty (30) days each time until final judgment is rendered. It may likewise modify the
extended or renewed temporary protection order as may be necessary to meet the needs of
the parties. With the private respondent given ample protection, petitioner could proceed to
litigate the constitutional issues, without necessarily running afoul of the very purpose for the
adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition
with prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698).
Petitioner may have proceeded upon an honest belief that if he finds succor in a superior
court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-
SC expressly disallows the filing of a petition for certiorari, mandamus or prohibition against
any interlocutory order issued by the trial court. Hence, the 60-day TRO issued by the
appellate court in this case against the enforcement of the TPO, the amended TPOs and
other orders pursuant thereto was improper, and it effectively hindered the case from taking
its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself
entitle a litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court
of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to
their separate and distinct prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution
even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully
the merits of the case. It bears stressing, however, that protection orders are granted ex
parte so as to protect women and their children from acts of violence. To issue an injunction
against such orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to
determine novel issues, or issues of first impression, with far-reaching implications. We have,
time and again, discharged our solemn duty as final arbiter of constitutional issues, and with
more reason now, in view of private respondent's plea in her Comment59 to the instant
Petition that we should put the challenge to the constitutionality of R.A. 9262 to rest. And so
we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and
child abuse, which could very well be committed by either the husband or the wife, gender
alone is not enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A.
9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as
Senator Loi Estrada), had originally proposed what she called a "synthesized measure"62 –
an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-
Abuse of Women in Intimate Relationships Act"63 – providing protection to "all family
members, leaving no one in isolation" but at the same time giving special attention to women
as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed that
men be denied protection under the same measure. We quote pertinent portions of the
deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's
groups have expressed concerns and relayed these concerns to me that if we are to include
domestic violence apart from against women as well as other members of the household,
including children or the husband, they fear that this would weaken the efforts to address
domestic violence of which the main victims or the bulk of the victims really are the wives,
the spouses or the female partners in a relationship. We would like to place that on record.
How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves
"WIIR" Women in Intimate Relationship. They do not want to include men in this domestic
violence. But plenty of men are also being abused by women. I am playing safe so I placed
here members of the family, prescribing penalties therefor and providing protective measures
for victims. This includes the men, children, live-in, common-law wives, and those related
with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to
women and not to families which was the issue of the AWIR group. The understanding that I
have is that we would be having a broader scope rather than just women, if I remember
correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation
period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me
wrong. However, I believe that there is a need to protect women's rights especially in the
domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the
opportunity to file a case against their spouses, their live-in partners after years, if not
decade, of battery and abuse. If we broaden the scope to include even the men, assuming
they can at all be abused by the women or their spouses, then it would not equalize the
already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am
sure that the men in this Chamber who love their women in their lives so dearly will agree
with this representation. Whether we like it or not, it is an unequal world. Whether we like it or
not, no matter how empowered the women are, we are not given equal opportunities
especially in the domestic environment where the macho Filipino man would always feel that
he is stronger, more superior to the Filipino woman.

xxxx
The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill
because the family members have been included in this proposed measure since the other
members of the family other than women are also possible victims of violence. While women
are most likely the intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand to be victimized
and that children are almost always the helpless victims of violence. I am worried that there
may not be enough protection extended to other family members particularly children who
are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the
special needs of abused children. The same law is inadequate. Protection orders for one are
not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men,
fearing that they may use this law to justify their abusive behavior against women. However,
we should also recognize that there are established procedures and standards in our courts
which give credence to evidentiary support and cannot just arbitrarily and whimsically
entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the
family as the basic social institution. Though I recognize the unequal power relations
between men and women in our society, I believe we have an obligation to uphold inherent
rights and dignity of both husband and wife and their immediate family members, particularly
children.

While I prefer to focus mainly on women, I was compelled to include other family members
as a critical input arrived at after a series of consultations/meetings with various NGOs,
experts, sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda
would be removing the "men and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now
whether she is inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this,
I will propose an amendment to the amendment rather than object to the amendment, Mr.
President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang
magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children from this
particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of
fact, it is not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I
have seen 14, 15-year-old children being abused by their fathers, even by their mothers. And
it breaks my heart to find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will
update that. It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the
bill but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the
amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members
of Congress in limiting the protection against violence and abuse under R.A. 9262 to women
and children only. No proper challenge on said grounds may be entertained in this
proceeding. Congress has made its choice and it is not our prerogative to supplant this
judgment. The choice may be perceived as erroneous but even then, the remedy against it is
to seek its amendment or repeal by the legislative. By the principle of separation of powers, it
is the legislative that determines the necessity, adequacy, wisdom and expediency of any
law.68 We only step in when there is a violation of the Constitution. However, none was
sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. The oft-repeated disquisition
in the early case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make
for real differences; that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on
a valid classification as shall hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of violence and abuse to whom the
State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the classification under the law. As
Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of
true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender
Equality and Women's Empowerment), violence against women (VAW) is deemed to be
closely linked with the unequal power relationship between women and men otherwise
known as "gender-based violence". Societal norms and traditions dictate people to think men
are the leaders, pursuers, providers, and take on dominant roles in society while women are
nurturers, men's companions and supporters, and take on subordinate roles in society. This
perception leads to men gaining more power over women. With power comes the need to
control to retain that power. And VAW is a form of men's expression of controlling women to
retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that "violence against women is a manifestation of historically
unequal power relations between men and women, which have led to domination over and
discrimination against women by men and to the prevention of the full advancement of
women, and that violence against women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during
the Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the
pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The
patriarch of a family was accorded the right to use force on members of the family under his
control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional
rule of men. Women were seen in virtually all societies to be naturally inferior both physically
and intellectually. In ancient Western societies, women whether slave, concubine or wife,
were under the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if
she endangered his property right over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent
Blackstone has been quoted in his commentaries as saying husband and wife were one and
that one was the husband. However, in the late 1500s and through the entire 1600s, English
common law began to limit the right of husbands to chastise their wives. Thus, common law
developed the rule of thumb, which allowed husbands to beat their wives with a rod or stick
no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or
inflict corporeal punishment ceased. Even then, the preservation of the family was given
more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English
common law. In 1871, the Supreme Court of Alabama became the first appellate court to
strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke
her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law
that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The
temperance leagues initiated it. These leagues had a simple focus. They considered the
evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed
saloons, bars and their husbands' other watering holes. Soon, however, their crusade was
joined by suffragette movements, expanding the liberation movement's agenda. They fought
for women's right to vote, to own property, and more. Since then, the feminist movement was
on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue into an important public concern. No less
than the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the
victims of severe assaults by their male partners. In a 1985 survey, women reported that
nearly one of every eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as "marked underestimates," because
the nature of these incidents discourages women from reporting them, and because surveys
typically exclude the very poor, those who do not speak English well, and women who are
homeless or in institutions or hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner violence is probably
double the above estimates; or four million severely assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the
United States, nearly 11,000 women are severely assaulted by their male partners. Many of
these incidents involve sexual assault... In families where wife beating takes place,
moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible
form of abuse. Psychological abuse, particularly forced social and economic isolation of
women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive
no superior alternative...Many abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source of income... Returning to
one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose
that 8.8 percent of all homicide victims in the United States are killed by their spouses...Thirty
percent of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The
United States Charter and the Universal Declaration of Human Rights affirmed the equality of
all human beings. In 1979, the UN General Assembly adopted the landmark Convention on
the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN
General Assembly also adopted the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women have been regularly held in
 Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on
the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State
to recognize the role of women in nation building and to ensure the fundamental equality
before the law of women and men. Our Senate has ratified the CEDAW as well as the
Convention on the Rights of the Child and its two protocols. To cap it all, Congress, on
March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for Victims, Prescribing
Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely" victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against
women and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63%
of total cases reported (9,903). And for the first semester of 2003, there were 2,381 reported
cases out of 4,354 cases which represent 54.31%. xxx (T)he total number of women in
especially difficult circumstances served by the Department of Social Welfare and
Development (DSWD) for the year 2002, there are 1,417 physically abused/maltreated cases
out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of
3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all
forms of abuse and violence and more than 90% of these reported cases were committed by
the women's intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on

violence against women across an eight-year period from 2004 to August of 2011 with
violations under R.A. 9262 ranking first among the different VAW categories since its
implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous Rape 38 46 26 22 28 27 19 23

Attempted Rape 194 148 185 147 204 167 268 201
Acts of
580 536 382 358 445 485 745 625
Lasciviousness

Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
53 37 38 46 18 54 83 63
Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
16 34 23 28 18 25 22
/Kidnapping 29

Unjust Vexation 90 50 59 59 83 703 183 155

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence
against men in the Philippines because incidents thereof are relatively low and, perhaps,
because many men will not even attempt to report the situation. In the United Kingdom, 32%
of women who had ever experienced domestic violence did so four or five (or more) times,
compared with 11% of the smaller number of men who had ever experienced domestic
violence; and women constituted 89% of all those who had experienced 4 or more incidents
of domestic violence.75Statistics in Canada show that spousal violence by a woman against a
man is less likely to cause injury than the other way around (18 percent versus 44 percent).
Men, who experience violence from their spouses are much less likely to live in fear of
violence at the hands of their spouses, and much less likely to experience sexual assault. In
fact, many cases of physical violence by a woman against a spouse are in self-defense or
the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men
in the Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in receptacles the manure emitted or discharged by
their vehicle-drawing animals in any public highways, streets, plazas, parks or alleys, said
ordinance was challenged as violative of the guaranty of equal protection of laws as its
application is limited to owners and drivers of vehicle-drawing animals and not to those
animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be
non-vehicle-drawing animals that also traverse the city roads, "but their number must be
negligible and their appearance therein merely occasional, compared to the rig-drawing
ones, as not to constitute a menace to the health of the community."77 The mere fact that the
legislative classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against
women are often treated differently and less seriously than other crimes. This was argued by
then United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the
Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid
exercise of the U.S. Congress' authority under the Commerce and Equal Protection Clauses.
He stressed that the widespread gender bias in the U.S. has institutionalized historic
prejudices against victims of rape or domestic violence, subjecting them to "double
victimization" – first at the hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723
that "(w)henever violence occurs in the family, the police treat it as a private matter and
advise the parties to settle the conflict themselves. Once the complainant brings the case to
the prosecutor, the latter is hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved by the police and prosecution
reinforces the escalating, recurring and often serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for
Conduct Unbecoming of a Judge. He used derogatory and irreverent language in reference
to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-
in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and accused her of being motivated
by "insatiable greed" and of absconding with the contested property.81 Such remarks
betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific
measures focused on women does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male,"
"husband-bashing," and "hate-men" law deserves scant consideration. As a State Party to
the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the
social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the
development of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of
Policy, as follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of
women and children and guarantees full respect for human rights. The State also recognizes
the need to protect the family and its members particularly women and children, from
violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women
and children in keeping with the fundamental freedoms guaranteed under the Constitution
and the provisions of the Universal Declaration of Human Rights, the Convention on the
Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the
Child and other international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on
August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.86 This Convention mandates that State parties shall accord
to women equality with men before the law87 and shall take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and family relations
on the basis of equality of men and women.88 The Philippines likewise ratified the Convention
on the Rights of the Child and its two protocols.89 It is, thus, bound by said Conventions and
their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section
3 thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not
limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or

emotional suffering of the victim such as but not limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation, repeated verbal abuse and marital
infidelity. It includes causing or allowing the victim to witness the physical, sexual or
psychological abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

 4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable
to research that has exposed the dimensions and dynamics of battery. The acts described
here are also found in the U.N. Declaration on the Elimination of Violence Against
Women.90 Hence, the argument advanced by petitioner that the definition of what constitutes
abuse removes the difference between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse
petitioner in his defense. The acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited acts. They are worded with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is
prohibited, and need not guess at its meaning nor differ in its application.91 Yet, petitioner
insists92that phrases like "depriving or threatening to deprive the woman or her child of a
legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld – not absolute
precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father
as the culprit. As defined above, VAWC may likewise be committed "against a woman with
whom the person has or had a sexual or dating relationship." Clearly, the use of the gender-
neutral word "person" who has or had a sexual or dating relationship with the woman
encompasses even lesbian relationships. Moreover, while the law provides that the offender
be related or connected to the victim by marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-
law of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case
filed by the latter upon the allegation that they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family home; and in repeatedly
abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all
protections afforded by the due process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to respond, the husband is
stripped of family, property, guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in
their daily life and facilitate the opportunity and ability to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended
party is afforded all the remedies necessary to curtail access by a perpetrator to the victim.
This serves to safeguard the victim from greater risk of violence; to accord the victim and any
designated family or household member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment and support of the victim. It
also enables the court to award temporary custody of minor children to protect the children
from violence, to prevent their abduction by the perpetrator and to ensure their financial
support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since "time is of the essence in cases of VAWC if further violence is to be
prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice and
hearing when the life, limb or property of the victim is in jeopardy and there is reasonable
ground to believe that the order is necessary to protect the victim from the immediate and
imminent danger of VAWC or to prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte
order. The victim is required not only to verify the allegations in the petition, but also to attach
her witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. Just like a writ of preliminary attachment which is issued without notice and hearing
because the time in which the hearing will take could be enough to enable the defendant to
abscond or dispose of his property,102 in the same way, the victim of VAWC may already
have suffered harrowing experiences in the hands of her tormentor, and possibly even death,
if notice and hearing were required before such acts could be prevented. It is a constitutional
commonplace that the ordinary requirements of procedural due process must yield to the
necessities of protecting vital public interests,103among which is protection of women and
children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order
that notice be immediately given to the respondent directing him to file an opposition within
five (5) days from service. Moreover, the court shall order that notice, copies of the petition
and TPO be served immediately on the respondent by the court sheriffs. The TPOs are
initially effective for thirty (30) days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance
and service of the notice upon the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the preliminary conference and hearing
on the merits shall likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should
be apprised of the charges imputed to him and afforded an opportunity to present his side.
Thus, the fear of petitioner of being "stripped of family, property, guns, money, children, job,
future employment and reputation, all in a matter of seconds, without an inkling of what
happened" is a mere product of an overactive imagination. The essence of due process is to
be found in the reasonable opportunity to be heard and submit any evidence one may have
in support of one's defense. "To be heard" does not only mean verbal arguments in court;
one may be heard also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-
Parte Motion for Renewal of the TPO that was granted only two days earlier on April 24,
2006. Likewise, on May 23, 2006, petitioner filed a motion for the modification of the TPO to
allow him visitation rights to his children. Still, the trial court in its Order dated September 26,
2006, gave him five days (5) within which to show cause why the TPO should not be
renewed or extended. Yet, he chose not to file the required comment arguing that it would
just be an "exercise in futility," conveniently forgetting that the renewal of the questioned
TPO was only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having failed to do
so, petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case
from the residence of the victim, regardless of ownership of the residence, is virtually a
"blank check" issued to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination
suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any,
some or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party,
regardless of ownership of the residence, either temporarily for the purpose of protecting the
offended party, or permanently where no property rights are violated. If the respondent must
remove personal effects from the residence, the court shall direct a law enforcement agent to
accompany the respondent to the residence, remain there until the respondent has gathered
his things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such
removal and exclusion may be permanent only where no property rights are violated. How
then can the private respondent just claim any property and appropriate it for herself, as
petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging

mediation and counseling, the law has done violence to the avowed policy of the State to
"protect and strengthen the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue
thereof to a mediator. The reason behind this provision is well-explained by the Commentary
on Section 311 of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding
for an order for protection. Mediation is a process by which parties in equivalent bargaining
positions voluntarily reach consensual agreement about the issue at hand. Violence,
however, is not a subject for compromise. A process which involves parties mediating the
issue of violence implies that the victim is somehow at fault. In addition, mediation of issues
in a proceeding for an order of protection is problematic because the petitioner is frequently
unable to participate equally with the person against whom the protection order has been
sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under
the Constitution, is placed upon the "Supreme Court and such other lower courts as may be
established by law" and, thus, protests the delegation of power to barangay officials to issue
protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay
Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay
ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this
Act. A Punong Barangay who receives applications for a BPO shall issue the protection
1âw phi 1

order to the applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application for a BPO, the
application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by
a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO.
BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same
on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the
Punong Barangay.

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.112 On the other hand, executive
power "is generally defined as the power to enforce and administer the laws. It is the power
of carrying the laws into practical operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay
or, in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to
desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause
the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature, in pursuance of his duty under the Local Government Code to "enforce
all laws and ordinances," and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into the
existence of certain facts and to apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect private rights do not constitute an
exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof," the Punong Barangay must determine
reasonable ground to believe that an imminent danger of violence against the woman and
her children exists or is about to recur that would necessitate the issuance of a BPO. The
preliminary investigation conducted by the prosecutor is, concededly, an executive, not a
judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and
other law enforcement agencies are required to extend assistance to victims of violence and
abuse, it would be very unlikely that they would remain objective and impartial, and that the
chances of acquittal are nil. As already stated, assistance by barangay officials and other law
enforcement agencies is consistent with their duty to enforce the law and to maintain peace
and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a
clear conflict with the Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of the Court. In other
words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case,
however, no concrete evidence and convincing arguments were presented by petitioner to
warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of Congress and
signed into law by the highest officer of the co-equal executive department. As we said in
Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of
the borders and edges of its plenary powers, and passed laws with full knowledge of the
facts and for the purpose of promoting what is right and advancing the welfare of the
majority.

We reiterate here Justice Puno's observation that "the history of the women's movement
against domestic violence shows that one of its most difficult struggles was the fight against
the violence of law itself. If we keep that in mind, law will not again be a hindrance to the
struggle of women for equality but will be its fulfillment."118 Accordingly, the constitutionality of
R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the
September 29, 2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414,
which affirmed the April 25, 2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC).
declaring the marriage of Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios)
as void from the beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge
Ofelia I. Calo of the Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as
evidenced by a Certificate of Marriage with Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her
marriage with Fringer. She alleged that immediately after their marriage, they separated and
never lived as husband and wife because they never really had any intention of entering into
a married state or complying with any of their essential marital obligations. She described
their marriage as one made in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007,
Albios filed a motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered
the Assistant Provincial Prosecutor to conduct an investigation and determine the existence
of a collusion. On October 2, 2007, the Assistant Prosecutor complied and reported that she
could not make a determination for failure of both parties to appear at the scheduled
investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend
the hearing despite being duly notified of the schedule. After the pre-trial, hearing on the
merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive
portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of

Liberty Albios and Daniel Lee Fringer as void from the very beginning. As a necessary
consequence of this pronouncement, petitioner shall cease using the surname of respondent
as she never acquired any right over it and so as to avoid a misimpression that she remains
the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving
credence to the testimony of Albios, it stated that she contracted Fringer to enter into a
marriage to enable her to acquire American citizenship; that in consideration thereof, she
agreed to pay him the sum of $2,000.00; that after the ceremony, the parties went their
separate ways; that Fringer returned to the United States and never again communicated
with her; and that, in turn, she did not pay him the $2,000.00 because he never processed
her petition for citizenship. The RTC, thus, ruled that when marriage was entered into for a
purpose other than the establishment of a conjugal and family life, such was a farce and
should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General
(OSG), filed a motion for reconsideration. The RTC issued the Order, 7 dated February 5,
2009, denying the motion for want of merit. It explained that the marriage was declared void
because the parties failed to freely give their consent to the marriage as they had no
intention to be legally bound by it and used it only as a means to acquire American
citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which
found that the essential requisite of consent was lacking. The CA stated that the parties
clearly did not understand the nature and consequence of getting married and that their case
was similar to a marriage in jest. It further explained that the parties never intended to enter
into the marriage contract and never intended to live as husband and wife or build a family. It
concluded that their purpose was primarily for personal gain, that is, for Albios to obtain
foreign citizenship, and for Fringer, the consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A

MARRIAGE CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP
WAS DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and
for Fringer to be paid $2,000.00, both parties freely gave their consent to the marriage, as
they knowingly and willingly entered into that marriage and knew the benefits and
consequences of being bound by it. According to the OSG, consent should be distinguished
from motive, the latter being inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in
jest. The parties here intentionally consented to enter into a real and valid marriage, for if it
were otherwise, the purpose of Albios to acquire American citizenship would be rendered
futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her
marriage was similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for
review on certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for
the sole purpose of acquiring American citizenship in consideration of $2,000.00, void ab
initio on the ground of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage
fraud for the purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the
development of marriage fraud for the sole purpose of availing of particular benefits. In the
United States, marriages where a couple marries only to achieve a particular purpose or
acquire specific benefits, have been referred to as "limited purpose" marriages.11 A common
limited purpose marriage is one entered into solely for the legitimization of a child.12 Another,
which is the subject of the present case, is for immigration purposes. Immigration law is
usually concerned with the intention of the couple at the time of their marriage,13 and it
attempts to filter out those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established
the principal test for determining the presence of marriage fraud in immigration cases. It
ruled that a "marriage is a sham if the bride and groom did not intend to establish a life
together at the time they were married. "This standard was modified with the passage of the
Immigration Marriage Fraud Amendment of 1986 (IMFA), which now requires the couple to
instead demonstrate that the marriage was not "entered into for the purpose of evading the
immigration laws of the United States." The focus, thus, shifted from determining the
intention to establish a life together, to determining the intention of evading immigration
laws.16 It must be noted, however, that this standard is used purely for immigration purposes
and, therefore, does not purport to rule on the legal validity or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the
limited purpose of immigration is also legally void and in existent. The early cases on limited
purpose marriages in the United States made no definitive ruling. In 1946, the notable case
of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in
the country, the parties had agreed to marry but not to live together and to obtain a divorce
within six months. The Court, through Judge Learned Hand, ruled that a marriage to convert
temporary into permanent permission to stay in the country was not a marriage, there being
no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is
necessary to every contract; and no matter what forms or ceremonies the parties may go
through indicating the contrary, they do not contract if they do not in fact assent, which may
always be proved. x x x Marriage is no exception to this rule: a marriage in jest is not a
marriage at all. x x x It is quite true that a marriage without subsequent consummation will be
valid; but if the spouses agree to a marriage only for the sake of representing it as such to
the outside world and with the understanding that they will put an end to it as soon as it has
served its purpose to deceive, they have never really agreed to be married at all. They must
assent to enter into the relation as it is ordinarily understood, and it is not ordinarily
understood as merely a pretence, or cover, to deceive others.18
(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines,19 which
declared as valid a marriage entered into solely for the husband to gain entry to the United
States, stating that a valid marriage could not be avoided "merely because the marriage was
entered into for a limited purpose."20 The 1980 immigration case of Matter of McKee,21 further
recognized that a fraudulent or sham marriage was intrinsically different from a non
subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been
recognized as problematic. The problem being that in order to obtain an immigration benefit,
a legal marriage is first necessary.22 At present, United States courts have generally denied
annulments involving" limited purpose" marriages where a couple married only to achieve a
particular purpose, and have upheld such marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was
entered into for a purpose other than the establishment of a conjugal and family life, such
was a farce and should not be recognized from its inception. In its resolution denying the
OSG’s motion for reconsideration, the RTC went on to explain that the marriage was
declared void because the parties failed to freely give their consent to the marriage as they
had no intention to be legally bound by it and used it only as a means for the respondent to
acquire American citizenship. Agreeing with the RTC, the CA ruled that the essential
requisite of consent was lacking. It held that the parties clearly did not understand the nature
and consequence of getting married. As in the Rubenstein case, the CA found the marriage
to be similar to a marriage in jest considering that the parties only entered into the marriage
for the acquisition of American citizenship in exchange of $2,000.00. They never intended to
enter into a marriage contract and never intended to live as husband and wife or build a
family.

The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of
consent. Under Article 2 of the Family Code, consent is an essential requisite of marriage.
Article 4 of the same Code provides that the absence of any essential requisite shall render a
marriage void ab initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the
presence of a solemnizing officer. A "freely given" consent requires that the contracting
parties willingly and deliberately enter into the marriage. Consent must be real in the sense
that it is not vitiated nor rendered defective by any of the vices of consent under Articles45
and 46 of the Family Code, such as fraud, force, intimidation, and undue influence.24Consent
must also be conscious or intelligent, in that the parties must be capable of intelligently
understanding the nature of, and both the beneficial or unfavorable consequences of their
act.25 Their understanding should not be affected by insanity, intoxication, drugs, or
hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was
real consent because it was not vitiated nor rendered defective by any vice of consent. Their
consent was also conscious and intelligent as they understood the nature and the beneficial
and inconvenient consequences of their marriage, as nothing impaired their ability to do so.
That their consent was freely given is best evidenced by their conscious purpose of acquiring
American citizenship through marriage. Such plainly demonstrates that they willingly and
deliberately contracted the marriage. There was a clear intention to enter into a real and valid
marriage so as to fully comply with the requirements of an application for citizenship. There
was a full and complete understanding of the legal tie that would be created between them,
since it was that precise legal tie which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as
akin to a marriage by way of jest. A marriage in jest is a pretended marriage, legal in form
but entered into as a joke, with no real intention of entering into the actual marriage status,
and with a clear understanding that the parties would not be bound. The ceremony is not
followed by any conduct indicating a purpose to enter into such a relation.27 It is a pretended
marriage not intended to be real and with no intention to create any legal ties whatsoever,
hence, the absence of any genuine consent. Marriages in jest are void ab initio, not for
vitiated, defective, or unintelligent consent, but for a complete absence of consent. There is
no genuine consent because the parties have absolutely no intention of being bound in any
way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios and Fringer
1âw phi 1

had an undeniable intention to be bound in order to create the very bond necessary to allow
the respondent to acquire American citizenship. Only a genuine consent to be married would
allow them to further their objective, considering that only a valid marriage can properly
support an application for citizenship. There was, thus, an apparent intention to enter into the
actual marriage status and to create a legal tie, albeit for a limited purpose. Genuine consent
was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to
establish a conjugal and family life. The possibility that the parties in a marriage might have
no real intention to establish a life together is, however, insufficient to nullify a marriage freely
entered into in accordance with law. The same Article 1 provides that the nature,
consequences, and incidents of marriage are governed by law and not subject to stipulation.
A marriage may, thus, only be declared void or voidable under the grounds provided by law.
There is no law that declares a marriage void if it is entered into for purposes other than what
the Constitution or law declares, such as the acquisition of foreign citizenship. Therefore, so
long as all the essential and formal requisites prescribed by law are present, and it is not void
or voidable under the grounds provided by law, it shall be declared valid.28

Motives for entering into a marriage are varied and complex. The State does not and cannot
dictate on the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle
would go into the realm of their right to privacy and would raise serious constitutional
questions.29 The right to marital privacy allows married couples to structure their marriages in
almost any way they see fit, to live together or live apart, to have children or no children, to
love one another or not, and so on.30 Thus, marriages entered into for other purposes, limited
or otherwise, such as convenience, companionship, money, status, and title, provided that
they comply with all the legal requisites,31are equally valid. Love, though the ideal
consideration in a marriage contract, is not the only valid cause for marriage. Other
considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for
dishonest purposes, It cannot declare the marriage void. Hence, though the respondent’s
marriage may be considered a sham or fraudulent for the purposes of immigration, it is not
void ab initio and continues to be valid and subsisting.
Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3)
of the Family Code. Only the circumstances listed under Article 46 of the same Code may
constitute fraud, namely, (1) non- disclosure of a previous conv1ctwn involving moral
turpitude; (2) concealment by the wife of a pregnancy by another man; (3) concealment of a
sexually transmitted disease; and (4) concealment of drug addiction, alcoholism, or
homosexuality. No other misrepresentation or deceit shall constitute fraud as a ground for an
action to annul a marriage. Entering into a marriage for the sole purpose of evading
immigration laws does not qualify under any of the listed circumstances. Furthermore, under
Article 47 (3), the ground of fraud may only be brought by the injured or innocent party. In the
present case, there is no injured party because Albios and Fringer both conspired to enter
into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her
marriage with Fringer to be declared void would only further trivialize this inviolable
institution. The Court cannot declare such a marriage void in the event the parties fail to
qualify for immigration benefits, after they have availed of its benefits, or simply have no
further use for it. These unscrupulous individuals cannot be allowed to use the courts as
instruments in their fraudulent schemes. Albios already misused a judicial institution to enter
into a marriage of convenience; she should not be allowed to again abuse it to get herself out
of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the
foundation of the family and shall be protected by the State.32 It must, therefore, be
safeguarded from the whims and caprices of the contracting parties. This Court cannot leave
the impression that marriage may easily be entered into when it suits the needs of the
parties, and just as easily nullified when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of
Appeals in CA-G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is
DISMISSED for utter lack of merit.

SO ORDERED.

EN BANC

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

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,

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

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE
 AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS,
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO,
DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,

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

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA

(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which
permanently enjoined the conduct of field trials for genetically modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace

Southeast Asia, a regional office of Greenpeace International registered in Thailand.3 Greenpeace is
a non-governmental environmental organization which operates in over 40 countries and with an
international coordinating body in Amsterdam, Netherlands. It is well known for independent direct
actions in the global campaign to preserve the environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an
international non-profit organization founded in 1990 "to facilitate the acquisition and transfer of
agricultural biotechnology applications from the industrial countries, for the benefit of resource-poor
farmers in the developing world" and ultimately "to alleviate hunger and poverty in the developing
countries." Partly funded by the United States Agency for International Development (USAID),
ISAAA promotes the use of agricultural biotechnology, such as genetically modified organisms
(GMOs).4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of

local farmers, scientists and NGOs working towards "the sustainable use and management of
biodiversity through farmers' control of genetic and biological resources, agricultural production,
and associated knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the University of
the Philippines (UP), originally established as the UP College of Agriculture. It is the center of
biotechnology education and research in Southeast Asia and home to at least four international
research and extension centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a private corporation
organized "to be an instrument for institutionalizing a rational system of utilizing UPLB expertise and
other assets for generating additional revenues and other resources needed by [UPLB]". Its main
purpose is to assist UPLB in "expanding and optimally utilizing its human, financial, and material
resources towards a focused thrust in agriculture, biotechnology, engineering and environmental
sciences and related academic programs and activities." A memorandum of agreement between
UPLBFI and UPLB allows the former to use available facilities for its activities and the latter to
designate from among its staff such personnel needed by projects.5

Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908.
Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria
Macapagal-Arroyo, UP was declared as the national university tasked "to perform its unique and
distinctive leadership in higher education and development." Among others, UP was mandated to
"serve as a research university in various fields of expertise and specialization by conducting basic
and applied research and development, and promoting research in various colleges and universities,
and contributing to the dissemination and application of knowledge."7

The other individual respondents are Filipino scientists, professors, public officials and ordinary
citizens invoking their constitutionally guaranteed right to health and balanced ecology, and suing
on their behalf and on behalf of future generations of Filipinos.

Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living
organisms or substances from those organisms to make or modify a product, to improve plants or
animals, or to develop microorganisms for specific uses."8 Its many applications include agricultural
production, livestock, industrial chemicals and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the
National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier
national research and development (R & D) institution applying traditional and modern
biotechnologies in innovating products, processes, testing and analytical services for agriculture,
health, energy, industry and development.9

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National
Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and
evaluate potential hazards involved in initiating genetic engineering experiments or the introduction
of new species and genetically engineered organisms and recommend measures to minimize risks"
and to "formulate and review national policies and guidelines on biosafety, such as the safe conduct
of work on genetic engineering, pests and their genetic materials for the protection of public health,
environment and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the
importation or introduction, movement and field release of potentially hazardous biological materials
in the Philippines. The guidelines also describe the required physical and biological containment and
safety procedures in handling biological materials. This was followed in 1998 by the "Guidelines on
Planned Release of Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic
Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern biotechnology has great potential for human well-being
if developed and used with adequate safety measures for the environment and human health." Its
main objectives, as spelled out in Article 1, are the "conservation of biological diversity, the
sustainable use of its components and the fair and equitable sharing of the benefits arising out of
the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena
Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to contribute to ensuring an
adequate level of the safe transfer, handling and use of living modified organisms resulting from
modern biotechnology that may have adverse effects on the conservation and sustainable use of
biological diversity, taking into account risks to human health, and specifically focusing on
transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92
or the "Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the
UN Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the
government policy of promoting the safe and responsible use of modern biotechnology and its
products as one of several means to achieve and sustain food security, equitable access to health
services, sustainable and safe environment and industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08
providing rules and regulations for the importation and release into the environment of plants and
plant products derived from the use of modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has
been altered or produced through the use of modem biotechnology if the donor organism, host
organism, or vector or vector agent belongs to the genera or taxa classified by the Bureau of Plant
Industry (BPI) as meeting the definition of plant pest or is a medium for the introduction of noxious
weeds; or (2) any plant or plant product altered through the use of modem biotechnology which
may pose significant risks to human health and the environment based on available scientific and
technical information.

The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514
(EO 514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing
Guidelines for its Implementation, and Strengthening the NCBP." The NBF shall apply to the
development, adoption and implementation of all biosafety policies, measures and guidelines and in
making decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles.12

EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-
2002, the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except for
provisions on potentially harmful exotic species which were repealed, and all issuances of the
Bureau of Food and Drugs Authority (FDA) on products of modem biotechnology, shall continue to
be in force and effect.13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between UPLBFI,
ISAAA and UP Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants that are
resistant to the fruit and shoot borer. Other partner agencies involved in the project were UPLB
through its Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India,
Cornell University and the Agricultural Biotechnology Support Project II (ABSPII) of US AID.

As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the pest-
resistant crop subject of the field trial was described as a "bioengineered eggplant." The crystal
toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant
(talong) genome to produce the protein CrylAc which is toxic to the target insect
pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot
borer (FSB), the most destructive insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially
completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained
Experiment stating that "During the conduct of the experiment, all the biosafety measures have
been complied with and no untoward incident has occurred."16

BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field
testing of Bt talong commenced on various dates in the following approved trial sites: Kabacan,
North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay,
Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a
petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO). They alleged that the Bt talong field trials
violate their constitutional right to health and a balanced ecology considering that (1) the required
environmental compliance certificate under Presidential Decree (PD) No. 1151 was not secured prior
to the project implementation; (2) as a regulated article under DAO 08-2002, Bt talong is presumed
harmful to human health and the environment, and there is no independent, peer-reviewed study
on the safety of Bt talong for human consumption and the environment; (3) a study conducted by
Professor Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn, while local
scientists also attested to the harmful effects of GMOs to human and animal health; (4) Bt crops can
be directly toxic to non-target species as highlighted by a research conducted in the US which
demonstrated that pollen from Bt maize was toxic to the Monarch butterfly; (5) data from the use
of Bt CrylAb maize indicate that beneficial insects have increased mortality when fed on larvae of a
maize pest, the corn borer, which had been fed on Bt, and hence non-target beneficial species that
may feed on eggplant could be similarly affected; (6) data from China show that the use of Bt crops
(Bt cotton) can exacerbate populations of other secondary pests; (7) the built-in pesticides
of Bt crops will lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims
by GMO manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area
set by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because pollinators
such as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated. The
full acceptance by the project proponents of the findings in the MAHYCO Dossier was strongly
assailed on the ground that these do not precisely and adequately assess the numerous hazards
posed by Bt talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the
required public consultation under Sections 26 & 27 of the Local Government Code, A random
survey by Greenpeace on July 21, 2011 revealed that ten households living in the area immediately
around the Bt talong experimental farm in Bay, Laguna expressed lack of knowledge about the field
testing in their locality. The Sangguniang Barangay of Pangasugan in Baybay, Leyte complained
about the lack of information on the nature and uncertainties of the Bt talong field testing in their
barangay. The Davao City Government likewise opposed the project due to lack of transparency and
public consultation. It ordered the uprooting of Bt eggplants at the trial site and disposed them
strictly in accordance with protocols relayed by the BPI through Ms. Merle Palacpac. Such action
highlighted the city government's policy on "sustainable and safe practices." On the other hand,
the Sangguniang Bayan of Sta. Barbara, Iloilo passed a resolution suspending the field testing due
to the following: lack of public consultation; absence of adequate study to determine the effect of Bt
talong field testing on friendly insects; absence of risk assessment on the potential impacts of
genetically modified (GM) crops on human health and the environment; and the possibility of cross-
pollination of Bt eggplants with native species or variety of eggplants, and serious threat to human
health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary principle,
the Bt talong field testing being a classic environmental case where scientific evidence as to the
health, environmental and socio-economic safety is insufficient or uncertain and preliminary
scientific evaluation indicates reasonable grounds for concern that there are potentially dangerous
effects on human health and the environment.

The following reliefs are thus prayed for:

a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i)
enjoining public respondents BPI and FPA of the DA from processing for field testing, and registering
as herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing
of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt talong for
field trials as their very presence pose significant and irreparable risks to human health and the
environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement system
under the Environmental Management Bureau;

(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests
report, regulatory compliance reports and supporting documents, and other material particulars of
the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public consultation,
public participation, and consent of the local government units in the barangays, municipalities, and
provinces affected by the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in consultation
with stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety
Framework of the Philippines, and DA Administrative Order No. 08, defining or incorporating an
independent, transparent, and comprehensive scientific and socio-economic risk assessment, public
information, consultation, and participation, and providing for their effective implementation, in
accord with international safety standards; and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct
balanced nationwide public information on the nature of Bt talong and Bt talong field trial, and a
survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating or
threatening to violate or allowing the violation of the above-enumerated laws, principles, and
international principle and standards, or committing acts, which would result into an environmental
damage of such magnitude as to prejudice the life, health, or property of petitioners in particular
and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found
to be violating the abovementioned laws, principles, and international standards; and recommend to
Congress curative legislations to effectuate such order.18 Chan RoblesVirt ualawli bra ry

On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management
Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-a ordering them to make a
verified return within a non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of
the Rules of Procedure for Environmental Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that
the issuance of writ of kalikasan is not proper because in the implementation of the Bt
talong project, all environmental laws were complied with, including public consultations in the
affected communities, to ensure that the people's right to a balanced and healthful ecology was
protected and respected. They also asserted that the Bt talong project is not covered by the
Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field trials will not
significantly affect the quality of the environment nor pose a hazard to human health. ISAAA
contended that the NBF amply safeguards the environment policies and goals promoted by the PEIS
Law. On its part, UPLBFI asserted that there is a "plethora of scientific works and literature, peer-
reviewed, on the safety of Bt talong for human consumption."20 UPLB, which filed an Answer21 to the
petition before the CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field
trial stage as none of the eggplants will be consumed by humans or animals, and all materials that
will not be used for analyses will be chopped, boiled and buried following the Biosafety Permit
requirements. It cited a 50-year history of safe use and consumption of agricultural products
sprayed with commercial Bt microbial pesticides and a 14-year history of safe consumption of food
and feed derived from Bt crops. Also mentioned is the almost 2 million hectares of land in the
Philippines which have been planted with Bt corn since 2003, and the absence of documented
significant and negative impact to the environment and human health. The statements given by
scientists and experts in support of the allegations of Greenpeace, et al. on the safety of Bt corn
was also addressed by citing the contrary findings in other studies which have been peer-reviewed
and published in scientific journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for non-
observance of the rule on hierarchy of courts and the allegations therein being mere assertions and
baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of Greenpeace, et al. in
filing the petition for writ of kalikasan as they do not stand to suffer any direct injury as a result of
the Bt talong field tests. They likewise prayed for the denial of the petition for continuing mandamus
for failure to state a cause of action and for utter lack of merit.

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

Finally, it is argued that the precautionary principle is not applicable considering that the field
testing is only a part of a continuing study being done to ensure that the field trials have no
significant and negative impact on the environment. There is thus no resulting environmental
damage of such magnitude as to prejudice the life, health, property of inhabitants in two or more
cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely involve technical
matters which pertain to the special competence of BPI whose determination thereon is entitled to
great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the
return of the writ and for hearing, reception of evidence and rendition of judgment.22

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the following
procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition for
writ of kalikasan; (2) whether or not said petition had been rendered moot and academic by the
alleged termination of the Bt talong field testing; and (3) whether or not the case presented a
justiciable controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess
the requisite legal standing to file the petition for writ of kalikasan; (2) assuming arguendo that the
field trials have already been terminated, the case is not yet moot since it is capable of repetition
yet evading review; and (3) the alleged non-compliance with environmental and local government
laws present justiciable controversies for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the
expert witnesses of both parties testify at the same time. Greenpeace, et al. presented the following
as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr. Medina), and Dr.
Tushar Chakraborty (Dr. Chakraborty). On the opposing side were the expert witnesses in the
persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cariño (Dr.
Cariño), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified were: Atty. Carmelo Segui
(Atty. Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy
Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent
Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in the subject
matter of the case as a broad-based coalition of advocates for the advancement of modern
biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating
that the latter had no direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents are DIRECTED to: chanRoblesvirt ual Lawlib rary

(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing
judgment of this Court.

No costs.

SO ORDERED.26 ChanRoblesVi rtualaw lib rary

The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of the
people. Concurring with Dr. Malayang's view that the government must exercise precaution "under
the realm of public policy" and beyond scientific debate, the appellate court noted the possible
irreversible effects of the field trials and the introduction of Bt talong to the market.

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

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in
its Resolution dated September 20, 2013 rejected the argument of UPLB that the appellate court's
ruling violated UPLB's constitutional right to academic freedom. The appellate court pointed out that
the writ of kalikasan originally issued by this Court did not stop research on Bt talong but only the
particular procedure adopted in doing field trials and only at this time when there is yet no law in
the form of a congressional enactment for ensuring its safety and levels of acceptable risks when
introduced into the open environment. Since the writ stops the field trials of Bt talong as a
procedure but does not stop Bt talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically modified
plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic
(living) and non-biotic things interacting as a living community in a particular space and time. In the
ecosystem are found specific and particular biotic and non-biotic entities which depend on each
other for the biotic entities to survive and maintain life. A critical element for biotic entities to
maintain life would be that their populations are in a proper and natural proportion to others so
that, in the given limits of available non-biotic entities in the ecosystem, no one population
overwhelms another. In the case of the Philippines, it is considered as one of the richest countries in
terms of biodiversity. It has so many plants and animals. It also has many kinds of other living
things than many countries in the world. We do not fully know how all these living things or
creatures interact among themselves. But, for sure, there is a perfect and sound balance of our
biodiversity as created or brought about by God out of His infinite and absolute wisdom.
In other words, every living creature has been in existence or has come into being for a purpose.
So, we humans are not supposed to tamper with any one element in this swirl of interrelationships
among living things in our ecosystem. Now, introducing a genetically modified plant in our
intricate world of plants by humans certainly appears to be an ecologically imbalancing
act. The damage that it will cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on November
20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant
[Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito
Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida
Cariño (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science) and
Dr. Saturnina Halos (Ph.D in Genetics) were in unison in admitting that bt talong is an altered plant.
xxx

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an
otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder
relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its
natural order which is meant to eliminate one feeder (the borer) in order to give undue advantage
to another feeder (the humans). The genetic transformation is one designed to make bt talong toxic
to its pests (the targeted organisms). In effect, bt talong kills its targeted organisms.
Consequently, the testing or introduction of bt talong into the Philippines, by its nature and
intent, is a grave and present danger to (and an assault on) the Filipinos' constitutional
right to a balanced ecology because, in any book and by any yardstick, it is an ecologically
imbalancing event or phenomenon. It is a willful and deliberate tampering of a naturally ordained
feed-feeder relationship in our environment. It destroys the balance of our biodiversity. Because it
violates the conjunct right of our people to a balanced ecology, the whole constitutional right of our
people (as legally and logically construed) is violated.

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

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

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:

I

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

II

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

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT

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

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING THE
STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY
DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED
TO EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION
OVER THE SAME LIES WITH THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE
WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013.

VI

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

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

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

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE

IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF
EVIDENCE TO PROVE THEIR CLAIM.

VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS

AGAINST PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER
2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.29 ChanRoblesVirtualawl ibra ry

G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the
CA Decision granting the petition for writ of kalikasanand writ of continuing mandamus despite the
failure of Greenpeace, et al. (respondents) to prove the requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly show signs
of toxicity in genetically engineered eggplant and other crops, these studies are insubstantial as
they were not published in peer-reviewed scientific journals. Respondents thus failed to present
evidence to prove their claim that the Bt talong field trials violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application in this
case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not formally
offered in evidence. In volunteering the said article to the parties, petitioners lament that the CA
manifested its bias towards respondents' position and did not even consider the testimony of Dr.
Davies who stated that "Seralini's work has been refuted by International committees of
scientists"30 as shown by published articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be ingested by
any human being during the field trial stage. Besides, if the results of said testing are adverse,
petitioners will not allow the release of Bt talong to the environment, in line with the guidelines set
by EO 514. The CA thus misappreciated the regulatory process as approval for field testing does not
automatically mean approval for propagation of the same product. And even assuming that the field
trials may indeed cause adverse environmental or health effects, the requirement of unlawful act or
omission on the part of petitioners or any of the proponents, was still absent. Respondents clearly
failed to prove there was any unlawful deviation from the provisions of DAO 08-2002. The BPI's
factual finding on the basis of risk assessment on the Bt talong project should thus be accorded
respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect,
preserve, rehabilitate and restore the environment, lacking in specifics which only indicates that
there was really nothing to preserve, rehabilitate or restore as there was nothing damaged or
adversely affected in the first place. As to the supposed inadequacy and ineffectiveness of existing
regulations, these are all political questions and policy issues best left to the discretion of the policy-
makers, the Legislative and Executive branches of government. Petitioners add that the CA treads
on judicial legislation when it recommended the re-examination of country's existing laws and
regulations governing studies and research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to
prove actual or imminent injury to them or the environment as to render the controversy ripe for
judicial determination. It points out that nowhere in the testimonies during the "hot-tub"
presentation of expert witnesses did the witnesses for respondents claim actual or imminent injury
to them or to the environment as a result of the Bt talong field tests, as they spoke only of injury in
the speculative, imagined kind without any factual basis. Further, the petition for writ
of kalikasan has been mooted by the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the
nature, character, scale, duration, design, processes undertaken, risk assessments and strategies
employed, results heretofore recorded, scientific literature, the safeguards and other precautionary
measures undertaken and applied, the Bt talong field tests did not or could not have violated the
right of respondents to a balanced and healthful ecology. The appellate court apparently
misapprehended the nature, character, design of the field trials as one for "consumption" rather
than for "field testing" as defined in DAO 08-2002, the sole purpose of which is for the "efficacy" of
the eggplant variety's resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by
competent evidence on record" (admitted exhibits)31:

118. Since the technology's inception 50 years ago, studies have shown that
genetically modified crops, including Bt talong, significantly reduce the use of
pesticides by farmers in growing eggplants, lessening pesticide poisoning to
humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the
use of insect-resistant genetically modified crops. Moreover, that insect-
resistant genetically modified crops significantly reduce the use of pesticides
in growing plants thus lessening pesticide poisoning in humans, reducing
pesticide load in the environment and encouraging more biodiversity in
farms.
120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the
Australian cotton industry by largely controlling Lepidopteran pests. To date,
it had no significant impact on the invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm

predatory heteropterans and, therefore, cultivation of Btcotton may provide
an opportunity for conservation of these predators in cotton ecosystems by
reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens
do not negatively affect monarch butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners
because flight distance of the pollinators is a deterrent to cross pollination.
Studies reveal that there can be no cross pollination more than a fifty (50)
meter distance.

xx
xx

135. There is a 50 year history of safe use and consumption of agricultural

products sprayed with commercial Bt microbial pesticides and a 14 year
history of safe consumption of food and feed derived from Bt crops.

xx
xx

140. In separate reviews by the European Food Safety Agency (EFSA) and the
Food Standards Australia and New Zealand (FSANZ), the "work" of one Prof.
Seralini relied upon by [respondents] was dismissed as "scientifically flawed",
 thus providing no plausible basis to the proposition that Bt talong is
dangerous to public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized

Biotech/GM Crops: 2011," the Philippines was cited to be the first country in
the ASEAN region to implement a regulatory system for transgenic crops
(which includes DAO 08-[2]002). Accordingly, the said regulatory system has
also served as a model for other countries in the region and other developing
countries outside of Asia.

On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the environment.
In fact, since BPI started regulating GM crops in 2002, they have monitored 171 field trials all over
the Philippines and said agency has not observed any adverse environmental effect caused by said
field trials. Plainly, respondents failed to show proof of "specific facts" of environmental damage of
the magnitude contemplated under the Rules of Procedure for Environmental Cases as to warrant
sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which they have been deprived without due process of
law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's pronouncement of
their guilt despite the preponderance of evidence on the environmental safety of the field trials, as
evident from its declaration that "the over-all safety guarantee of Bt talong remains to be still
unknown." It thus asks if in the meantime, petitioners must bear the judicial stigma of being cast as
violators of the right of the people to a balanced and healthful ecology for an injury or
damage unsubstantiated by evidence of scientific plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the
exercise of UPLB's academic freedom, which is a constitutional right. In this case, there is nothing
based on evidence on record or overwhelming public welfare concern, such as the right of the
people to a balanced and healthful ecology, which would warrant restraint on UPLB's exercise of
academic freedom. Considering that UPLB complied with all laws, rules and regulations regarding
the application and conduct of field testing of GM eggplant, and was performing such field tests
within the prescribed limits of DAO 08-2002, and there being no harm to the environment or
prejudice that will be caused to the life, health or property of inhabitants in two or more cities or
provinces, to restrain it from performing the said field testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case, in
violation of the standards set by the Rules of Procedure for Environmental Cases. It points out that
the Bt eggplants are not yet intended to be introduced into the Philippine ecosystem nor to the local
market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is
an entomologist and expert in integrated pest management and insect taxonomy, and Dr. Davies, a
member of the faculty of the Department of Plant Biology and Horticulture at Cornell University for
43 years and served as a senior science advisor in agricultural technology to the United States
Department of State. Both had testified that based on generally accepted and scientific
methodology, the field trial of Bt crops do not cause damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts
that the CA could not support its Decision and Resolution on the pure conjectures and imagination
of one witness. Basic is the rule that a decision must be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely
because of the serious safety concerns on the impact of Bt talong toxin on human and animal health
and the environment through field trial contamination. They point out that the inherent and
potential risks and adverse effects of GM crops are recognized in the Cartagena Protocol and our
biosafety regulations (EO 514 and DAO 08-2002). Contamination may occur through pollination,
ingestion by insects and other animals, water and soil run off, human error, mechanical accident
and even by stealing was inevitable in growing Bt talong in an open environment for field trial. Such
contamination may manifest even after many years and in places very far away from the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission,
respondents assert that, in the face of scientific uncertainties on the safety and effects of Bt talong,
petitioners omitted their crucial duties to conduct environmental impact assessment (EIA); evaluate
health impacts; get the free, prior and informed consent of the people in the host communities; and
provide remedial and liability processes in the approval of the biosafety permit and conduct of the
field trials in its five sites located in five provinces. These omissions have put the people and the
environment at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A
Compilation of Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a
study on Bt corn in the Philippines, "Socio-economic Impacts of Genetically Modified Corn in the
Philippines" published by MASIPAG in 2013; and the published report of the investigation conducted
by Greenpeace, "White Corn in the Philippines: Contaminated with Genetically Modified Corn
Varieties" which revealed positive results for samples purchased from different stores in Sultan
Kudarat, Mindanao, indicating that they were contaminated with GM corn varieties, specifically the
herbicide tolerant and Bt insect resistant genes from Monsanto, the world's largest biotech company
based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the
studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron,
all from the Universidad Nacional Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles
Seralini of the University of Caen, France, who is also the president of the Scientific Council of the
Committee for Independent Research and Information on Genetic Engineering (CRIIGEN), in his
review, commissioned by Greenpeace, of Mahyco's data submitted in support of the application to
grow and market Bt eggplant in India; and the medical interpretations of Prof. Seralini's findings by
Filipino doctors Dr. Romeo Quijano of the University of the Philippines-Philippine General Hospital
and Dr. Wency Kiat, Jr. of St. Luke's Medical Center (Joint Affidavit).

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

The conclusions of health hazards from the above studies were summarized32 by respondents, as
follows:

Studies/interpretation by Conclusion/interpretation

Drs. L. Moreno-Fierros, N. For Bt modified crops (like Bt talong), there is

Garcia, R. Gutierrez, R. concern over its potential

Lopez-Revilla, and RI Vazquez- allergenicity. CrylAcc (the gene inserted

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

Prof. Eric-Gilles Seralini His key findings showed statistical significant

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

Dr. Romeo Quijano & Dr. Wency Interpreting Prof. Seralini's findings, the altered
Kiat, Jr. condition of rats symptomatically indicate
hazards for human health.

Prof. David A. Andow The MAHYCO dossier is inadequate to support the

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

As to environmental effects, respondents said these include the potential for living modified
organisms, such as Bt talong tested in the field or released into the environment, to contaminate
non-GM traditional varieties and other wild eggplant relatives and turn them into novel pests,
outcompete and replace their wild relatives, increase dependence on pesticides, or spread their
introduced genes to weedy relatives, potentially creating superweeds, and kill beneficial insects.

Respondents then gave the following tabulated summary33 of field trial contamination cases drawn
from various news reports and some scientific literature submitted to the court:

What happened Impact How did it occur

During 2006 and 2007,
traces of three varieties of
unapproved genetically
modified rice owned by
Bayer Crop Science were
found in US rice exports in
over 30 countries
worldwide.
In July 2011, Bayer eventually Field trials were
agreed to a $750m US dollar conducted between
settlement resolving claims the mid-1990s and
with about 11,000 US farmers early 2000s. The US
for market losses and clean- Department of
up costs. Agriculture (USDA)
reported these field
The total costs to the rice trials were the likely
industry are likely to have sources of the
been over $1bn worldwide. contamination
between the
modified rice and
conventional
varieties. However,
it was unable to
conclude [if it] was
caused by gene flow
(cross pollination) or
mechanical mixing.
In 2009, unauthorised
GElinseed (also known as
'flax') produced by a public
research institution was
discovered in food in
several EU countries,
having been imported from
Canada.
Canada lost exports to its
main European market worth
hundreds of millions of dollars
and non-GElinseed farmers
have faced huge costs and
market losses.
In the late 1980s a
public research
institution, the Crop
Development Centre
in Saskatoon,
Saskat-chewan,
developed a
GElinseed variety
FP96—believed to be
the origin of the
contamination.

During 2004, the Thai Exports of papaya to Europe GEpapaya is not

government found that
papaya samples from 85
farms were genetically
modified. The
contamination continued
into 2006 and it is likely
that the GE contamination
reached the food chain.
have been hit because of
fears that contamination could
have spread. The Thai
government said it was taking
action to destroy the
contaminated trees.
grown commercially
in Thailand, so it
was clear that the
contamination
originated from the
government station
experimentally
breeding GE papaya
trees. Tests that
showed that one
third of papaya
orchards tested in
the eastern province
of Rayong and the
north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated
papaya seeds in July
2005. The owners
said that a research
station gave them
the seeds.

In the US in 2002, seeds Prodigene, the company Seeds from the

from a GEmaize pharma-
crop containing a pig
vaccine grew independently
among normal soybean
crops.
responsible, was fined $3m GEmaize crop
for tainting half a million sprouted voluntarily
bushels of soya bean with a in the following
trial vaccine used to prevent season.
stomach upsets in piglets.
Prodigene agreed to pay a
fine of $250,000 and to repay
the government for the cost
of incinerating the soya bean
that had been contaminated
with genetically altered corn.
In 2005, Greenpeace
discovered that GE rice
seeds had been illegally
sold in Hubei, China. Then,
in 2006, GE rice event Bt63
was found in baby food sold
in Beijing, Guangzhou and
Hong Kong. In late 2006,
GE rice Bt63 was found to
be contaminating exports in
Austria, France, the UK and
Germany. In 2007 it was
again found in EU imports
to Cyprus, Germany,
Greece, Italy and Sweden.
The European Commission The source of the
adopted emergency measures contamination
(on 15 August 2008) to appears to have
require compulsory been the result of
certification for the imports of illegal planting of
Chinese rice products that GEseeds. Seed
could contain the companies in China
unauthorised GE rice Bt63. found to have sold
GErice hybrid seed
The Chinese government took to farmers operated
several measures to try to directly under the
stop the contamination, which university
included punishing seed developing GM rice.
companies, confiscating It has been reported
GEseed, destroying GErice that the key scientist
grown in the field and sat on the board of
tightening control over the one GEseed
food chain. company.

In 2005, the European The European Commission The contamination

Commission announced blocked US grain import arose because
that illegal Bt10 GEmaize unless they could be Syngenta's quality
produced by GEseed guaranteed free of Bt10. The control procedures
company Syngenta had USDA fined Syngenta did not differentiate
entered the European food $375,000. There are no between Bt10 and
chain. The GEmaize Bt10 figures for the wider costs. its sister commercial
contains a marker gene line, Bt11. As a
that codes for the widely- result, the
used antibiotic ampicillin, experimental and
while the Bt11 does not. substantially
According to the different Bt10 line
international Codex was mistakenly used
Alimentarius Guideline for in breeding. The
Conduct of Food Safety error was detected
Assessment of Foods four years later
Derived from Recombinant- when one of the
DNA:Plants: 'Antibiotic seed companies
resistance genes used in developing Bt11
food production that varieties adopted
encode resistance to more sophisticated
clinically used antibiotics analytical
should not be present in techniques.
foods' because it increases
the risk of antibiotic
resistance in the
population.

Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season consists of a
maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080 sq.
meters,"34 respondents emphasize that as shown by the above, contamination knows no size and
boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the issuance of writ
of kalikasan, respondents assert that while the Bt talong field trials were conducted in only five
provinces, the environmental damage prejudicial to health extends beyond the health of the present
generation of inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury, respondents
said that biosafety evidence could not be readily contained in a corpus delicti to be presented in
court. Indeed, the inherent and potential risks and adverse effects brought by GMOs are not like
dead bodies or wounds that are immediately and physically identifiable to an eyewitness and which
are resulting from a common crime. Precisely, this is why the Cartagena Protocol's foundation is on
the precautionary principle and development of sound science and its links, to social and human
rights law through its elements of public awareness, public participation and public right to know.
This is also why the case was brought under the Rules of Procedure for Environmental Cases and
not under ordinary or other rules, on the grounds of violation of the rights of the Filipino people to
health, to a balanced and healthful ecology, to information on matters of national concern, and to
participation. The said Rules specifically provides that the appreciation of evidence in a case like this
must be guided by the precautionary principle.

As to the non-exhaustion of administrative remedies being raised by petitioners as ground to

dismiss the present petition, respondents said that nowhere in the 22 sections of DAO 08-2002 that
one can find a remedy to appeal the decision of the DA issuing the field testing permit. What is only
provided for is a mechanism for applicants of a permit, not stakeholders like farmers, traders and
consumers to appeal a decision by the BPI-DA in case of denial of their application for field testing.
Moreover, DAO 08-2002 is silent on appeal after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514
explicitly states that the application of biosafety regulations shall be made in accordance
with existing laws and the guidelines therein provided. Hence, aside from risk assessment
requirement of the biosafety regulations, pursuant to the PEISS law and Sections 12 and 13 of
the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is required and an
environmental compliance certificate (ECC) is necessary before such Bt crop field trials can be
conducted.

Petitioners' Replies

G.R. No. 209271

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

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do
not have "mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory
system, and to propose curative legislation. The law (EO 514) cited by respondents does not impose
such duty on public petitioners. As for the Cartagena Protocol, it laid down a procedure for the
evaluation of the Protocol itself, not of the Philippine biosafety regulatory system. ISAAA stresses
that the CA is without jurisdiction to review the soundness and wisdom of existing laws, policy and
regulations. Indeed, the questions posed by the respondents are political questions, which must be
resolved by the executive and legislative departments in deference to separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in
saying that these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-
2002 which grants them the right to submit their written comments on the BPI regarding the field
testing permits, or Section 8 (P) for the revocation and cancellation of a field testing permit.
Respondents' failure to resort to the internal mechanisms provided in DAO 08-2002 violates the rule
on exhaustion of administrative remedies, which warrants the dismissal of respondents' petition.
ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field
testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the
DA through the BPI, is responsible for the production of improved planting materials and protection
of agricultural crops from pests and diseases. In bypassing the administrative remedies available,
respondents not only failed to exhaust a less costly and speedier remedy, it also deprived the
parties of an opportunity to be heard by the BPI which has primary jurisdiction and knowledgeable
on the issues they sought to raise.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are
hearsay. Majority of those records contain incomplete information and none of them pertain to
the Bt talong. Respondents likewise presented two misleading scientific studies which have already
been discredited: the 2013 study by B.P. Mezzomo, et al. and the study by Prof. Seralini in 2012.
Petitioner notes that both articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126
usable records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo,
F. Veronesi, and D. Rosellini, entitled "An overview of the last 10 years of genetically engineered
crop safety research." The authors evaluated 1,783 scientific records of GE crop safety research
papers, reviews, relevant opinions and scientific reports from 2002-2012. Their findings concluded
that "the scientific research conducted so far has not detected any significant hazards directly
connected with the use of GE crops." In the article "Impacts of GM crops on biodiversity," in which
scientific findings concluded that "[o]verall, x x x currently commercialized GM crops have reduced
the impacts of agriculture on biodiversity, through enhanced adoption of conservation tillage
practices, reduction of insecticide use and use of more environmentally benign herbicides and
increasing yields to alleviate pressure to convert additional land into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-
A decade of EU-funded GMO research (2001-2010), concluded from more than 130 research
projects, covering a period of 25 years of research, and involving more than 500 independent
research groups, that "biotechnology, and in particular GMOs, are not per se more risky than e.g.
conventional plant breeding technologies." Another article cited is "Assessment of the health impact
of GM plant diets in long-term and multigenerational animal feeding trials: A literature review"
which states that scientific findings show that GM crops do not suggest any health hazard, and are
nutritionally equivalent to their non-GM counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental effects of
GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of
Field Research and Commercial Cultivation" which concluded that "[T]he data available so far
provide no scientific evidence that the cultivation of the presently commercialized GM crops has
caused environmental harm." A related article, "A Meta-Analysis of Effects of Bt Cotton and Maize
on Non-target Invertebrates" states that scientific findings show that non-target insects are more
abundant in GM crop fields like Bt cotton and Bt maize fields than in non-GM crops that are sprayed
with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA,
which presented the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same may
not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of Court; Heirs of
Pedro Pasag v. Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the study
was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and
conclusion of this study to Bt talong is grossly erroneous and calculated to mislead and deceive the
Honorable Court.

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-
Fierros, et al., which was published in an article entitled A Review of the Food Safety of Bt Crops,
the authors reported that Adel-Patient, et al. tried and failed to reproduce the results obtained by
the study made by L. Moreno-Fierros, et al. The reason is because of endotoxin contamination in
the preparation of the CrylAc protein. Further, when purified Cry protein was injected to mice
through intra-gastric administration, there was no impact on the immune response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing
potential health risks from human consumption of foods derived from Bt crops can be questioned
because the doses tested in mice is irrelevant to human dietary exposure, i.e., the doses given were
"far in excess of potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any
weight and consideration because his sworn statement was not admitted in evidence by the Court of
Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the differences
observed by Seralini's statistical analysis as examples of random biological variation that occurs
when many measurements are made on test animals, and which have no biological significance.
Hence, there are no food safety concerns. Further, petitioner ISAAA presented in evidence the
findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert Seralini's findings.
The EFSA and the FSANZ rejected Seralini's findings because the same were based
on questionable statistical procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its
earlier decision approving the safety of Bteggplant notwithstanding the findings of Seralini's
assessment. In effect, Seralini's findings and interpretation were rejected by the Indian regulatory
agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not
entitled to any weight and consideration because the Court of Appeals did not admit their sworn
statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed
study, making their sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof.
David A. Andow as the work of the National Academy of Sciences of the USA. Such claim is grossly
misleading. In truth, as Prof. David A. Andow indicated in the preface, the report was produced
upon the request of Aruna Rodriguez, a known anti-GM campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the environment of
Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all
over the country. He concluded, however, that the dossier is inadequate for ERA. This is perplexing
considering this is the same gene that has been used in Bt cotton since 1996. Scores of
environmental and food safety risk assessment studies have been conducted and there is wealth of
information and experience on its safety. Various meta-analyses indicate that delaying the use of
this already effective Bt brinjal for managing this devastating pest only ensures the continued use of
frequent insecticide sprays with proven harm to human and animal health and the environment and
loss of potential income of resource-poor small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the
Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the Mahyco
regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In effect, like
Seralini, Andow's findings and interpretation were also rejected by the Indian regulatory
agency.35ChanRoblesVirt ualawli bra ry

Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all
significant risks not only to the environment but also to human health. The requirements under
Sections 26 and 27 of the Local Government Code are also inapplicable because the field testing is
not among the six environmentally sensitive activities mentioned therein; the public consultations
and prior local government unit (LGU) approval, were nevertheless complied with. Moreover, the
field testing is an exercise of academic freedom protected by the Constitution, the possibility of Bt
talong's commercialization in the future is but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-serving as it
was conducted by respondents Greenpeace and MASIPAG themselves; the persons who prepared
the same were not presented in court to identify and testify on its findings; and the methods used
in the investigation and research were not scientific. Said studies failed to establish any correlation
between Bt corn and the purported environmental and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the
same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit
of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure of the respondents
to present scientific evidence to prove the claim of environmental and health damages, respondents
are not entitled to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the
latter complied with all the requirements under DAO 08-2002, including the conduct of risk
assessment. The applications for field testing of Bt talong thus underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt talong.
Even before the proponent submitted its application, petitioner BPI conducted a consultative
meeting with the proponent to enlighten the latter about the requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of
DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as
required in Section 8 (A) (1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated
article has undergone satisfactory testing under contained conditions in the Philippines, (ii) technical
dossier consisting of scientific literature and other scientific materials relied upon by the applicant
showing that Bt talong will not pose any significant risks to human health and the environment, and
(iii) copy of the proposed PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08;
and

Third. The applications contained the Endorsement of proposal for field testing, duly approved by
the majority of all the members of the respective Institutional Biosafety Committees (IBC),
including at least one community representative, as required by Section 8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation
of the risk assessment and risk management strategies of the applicant for field testing using the
NCBP guidelines. The IBC shall determine if the data obtained under contained conditions
provide sufficient basis to authorize the field testing of the regulated article. In making the
determination, the IBC shall ensure that field testing does not pose any significant risks to
human health and the environment. The IBC may, in its discretion, require the proponent to
perform additional experiments under contained conditions before acting on the field testing
proposal. The IBC shall either endorse the field testing proposal to the BPI or reject it for failing the
scientific risk assessment.

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

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the
three STRP members recommending the grant of Biosafety Permits to UPLB after a thorough risk
assessment and evaluation of UPLB's application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each
concerned barangays and city/municipal halls of the localities having jurisdiction over its proposed
field trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative
meetings and public seminars in order to provide public information and in order to give an
opportunity to the public to raise their questions and/or concerns regarding the Bt talongfield
trials.36
ChanRoble sVirt ualawli bra ry

Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to
the Bt talong field testing considering that its subject matter is not mass production for human
consumption. The project entails only the planting of Bt eggplants and cultivation in a controlled
environment; indeed, the conduct of a field trial is not a guarantee that the Bt talong will be
commercialized and allowed for cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that during
the period of public consultation under DAO 08-2002, it is BPI which processes written comments on
the application for field testing of a regulated article, and has the authority to approve or disapprove
the application. Also, under Section 8 (P), BPI may revoke a biosafety permit issued on the ground
of, among others, receipt of new information that the field testing poses significant risks to human
health and the environment. Petitioners assert they were never remiss in the performance of their
mandated functions, as shown by their immediate action with respect to the defective certification
of posting of PIS in Kabacan, North Cotabato. Upon receiving the letter-complaint on January 24,
2012, BPI readily ordered their re-posting. The same incident occurred in Davao City, where BPI
refused to lift the suspension of biosafety permits until "rectification of the conditions for public
consultation is carried out."

To underscore respondents' blatant disregard of the administrative process, petitioners refer to

documented instances when respondents took the law in their own hands. Greenpeace barged into
one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the entrance
gate through the use of a bolt cutter, and then proceeded to uproot the experimental crops without
permission from BPI or the project proponents. Petitioners submit that the non-observance of the
doctrine of exhaustion of administrative remedies results in lack of cause of action, one of the
grounds under the Rules of Court justifying the dismissal of a complaint.

Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well
as regional (Crop Life Asia) networks of member-companies representing the plant science industry.
It aims to "help improve the productivity of Filipino farmers and contribute to Philippine food
security in a sustainable way." It supports "innovation, research and development in agriculture
through the use of biology, chemistry, biotechnology, plant breeding, other techniques and
disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners'
right to due process because it was prevented from cross-examining the respondents' expert
witnesses and conducting re-direct examination of petitioners' own witnesses, and being an
evidently partial and prejudiced court. It said the petition for writ of kalikasan should have been
dismissed outright as it effectively asks the Court to engage in "judicial legislation" to "cure" what
respondents feel is an inadequate regulatory framework for field testing of GMOs in the Philippines.
Respondents also violated the doctrine of exhaustion of administrative remedies, and their petition
is barred by estoppel and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and
prove the particular environmental damage resulting from the Bt talong field testing. It cites the
scientific evidence on record and the internationally accepted scientific standards on GMOs and GMO
field testing, and considering the experience of various countries engaged in testing GMOs, telling
us that GMO field testing will not damage the environment nor harm human health and more likely
bring about beneficial improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously
equated field testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was
no particular environmental damage identified, much less proven; relied upon the article of Prof.
Seralini that was retracted by the scientific journal which published it; there is no scientific
uncertainty on the adverse effects of GMOs to environment and human health; and did not consider
respondents' failure to prove the insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely
safe before any field testing may be allowed, would result in permanently placing the Philippines in
the shadows of more developed nations (whose economies rest on emerging markets importing
products from them). It points out that the testing of Bt talong specifically addresses defined
problems such as the need to curb the misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of

advocates of modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:

I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE
ABSENCE OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE

PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY

PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF

SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-
TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE. 37 ChanRoblesVirtualawl ibra ry

BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack on the
sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA knew was highly
improper, it nonetheless granted the petition for writ of kalikasan on the theory that "mere
biosafety regulations" were insufficient to guarantee the safety of the environment and the health of
the people.

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust
administrative remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to regulated
articles prior to any release in the environment for field testing mandated by AO No. 8 sufficiently
complies with the rationale behind the development of the precautionary principle. By implementing
the stringent provisions of DAO 08-2002, in conjunction with the standards set by EO 514 and the
NBF, the government preemptively intervenes and takes precautionary measures prior to the
release of any potentially harmful substance or article into the environment. Thus, any potential
damage to the environment is prevented or negated. Moreover, international instruments ratified
and formally adopted by the Philippines (CBD and the Cartagena Protocol) provide additional
support in the proper application of the precautionary principle in relation to GMOs and the
environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment, which
must be backed by a reasonable scientific basis and not based on mere hypothetical allegation,
before the burden of proof is shifted to the public respondents in a petition for writ of kalikasan.
Here, the CA relied heavily on its observation that "... field trials of bt talongcould not be declared
... as safe to human health and to ecology, with full scientific certainty, being an alteration of an
otherwise natural state of affairs in our ecology" and "introducing a genetically modified plant in our
intricate world of plants by humans certainly appears to be an ecologically imbalancing act," among
others. BCP finds that this pronouncement of the CA constitutes an indictment not only against Bt
talong but against all GMOs as well. The appellate court's opinion is thus highly speculative,
sweeping and laced with obvious bias.

There being no credible showing in the record that the conduct of Bt talong field trials entails real
threats and that these threats pertain to serious and irreversible damage to the environment, BCP
maintains that the precautionary principle finds no application in this case. While Rule 20 of
the Rules of Procedure for Environmental Cases states that "[w]hen there is a lack of full scientific
certainty in establishing a causal link between human activity and environmental effect, the court
shall apply the precautionary principle in resolving the case before it," the CA failed to note that the
element of lack of full scientific certainty pertains merely to the causal link between human activity
and environmental effect, and not the existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against
technological advancements, especially those in agriculture. Affirming the CA decision thus sets a
dangerous precedent where any and all human activity may be enjoined based on unfounded fears
of possible damage to health or the environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;

4. Application of the law on environmental impact statement/assessment on projects involving

the introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the environment in two or
more provinces, as a result of the Bt talongfield trials;

6. Neglect or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing; and

7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question."38 It refers
particularly to "a party's personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result" of the act being challenged, and "calls for more than just a
generalized grievance."39

However, the rule on standing is a matter of procedure which can be relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such
as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest.40 The Court thus had invariably adopted a liberal policy on standing to
allow ordinary citizens and civic organizations to prosecute actions before this Court questioning the
constitutionality or validity of laws, acts, rulings or orders of various government agencies or
instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits. In
said case, we recognized the "public right" of citizens to "a balanced and healthful ecology which,
for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental
law." We held that such right need not be written in the Constitution for it is assumed, like other
civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it
is an issue of transcendental importance with intergenerational implications. Such right carries with
it the correlative duty to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We
find no difficulty in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come.43 (Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in environmental cases.44 The provision on citizen suits
in the Rules "collapses the traditional rule on personal and direct interest, on the principle that
humans are stewards of nature," and aims to "further encourage the protection of the
environment."45

There is therefore no dispute on the standing of respondents to file before this Court their petition
for writ of kalikasan and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on August 10, 2012.
In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because the
issues involved have become academic or dead, or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised
again between the parties.46 Time and again, courts have refrained from even expressing an opinion
in a case where the issues have become moot and academic, there being no more justiciable
controversy to speak of, so that a determination thereof would be of no practical use or value.47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar and the public; and fourth, the case is capable of
repetition yet evading review.48 We find that the presence of the second and fourth exceptions
justified the CA in not dismissing the case despite the termination of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field trials, it is
not certain if they have actually completed the field trial stage for the purpose of data gathering. At
any rate, it is on record that the proponents expect to proceed to the next phase of the project, the
preparation for commercial propagation of the Bt eggplants. Biosafety permits will still be issued by
the BPI for Bt talong or other GM crops. Hence, not only does this case fall under the "capable of
repetition yet evading review" exception to the mootness principle, the human and environmental
health hazards posed by the introduction of a genetically modified plant, a very popular staple
vegetable among Filipinos, is an issue of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail
of all the means afforded him by administrative processes. The issues which administrative agencies
are authorized to decide should not be summarily taken from them and submitted to a court without
first giving such administrative agency the opportunity to dispose of the same after due
deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is
within the jurisdiction of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services of the administrative tribunal to determine
technical and intricate matters of fact.

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

1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions specified in the
permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment; or

6. Such other grounds as BPI may deem reasonable to prevent significant risks to human
health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious
health and environmental adverse effects of the Bt talong field trials due to "inherent risks"
associated with genetically modified crops and herbicides. They sought the immediate issuance of a
TEPO to enjoin the processing for field testing and registering Bt talong as herbicidal product in the
Philippines, stopping all pending field trials of Bt talonganywhere in the country, and ordering the
uprooting of planted Bt talong in the field trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of
continuing mandamus commanding the respondents to: (1) comply with the requirement of
environmental impact statement; (2) submit comprehensive risk assessments, field test reports,
regulatory compliance reports and other material documents on Bt talong including issued
certifications on public consultation with LGUs; (3) work with other agencies to submit a draft
amendment to biosafety regulations; and (4) BPI, in coordination with relevant government
agencies, conduct balanced nationwide public information on the nature of Bt talong field trial, and a
survey of its social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the
respondents "to determine the questions of unique national and local importance raised here that
pertain to laws and rules for environmental protection, thus [they were] justified in coming to this
Court."50 We take judicial notice of the fact that genetically modified food is an intensely debated
global issue, and despite the entry of GMO crops (Bt corn) into the Philippines in the last decade, it
is only now that such controversy involving alleged damage or threat to human health and the
environment from GMOs has reached the courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill
specific purposes. The basic strategy employed is to use the sexual mechanism to reorganize the
genomes of two individuals in a new genetic matrix, and select for individuals in the progeny with
the desirable combination of the parental characteristics. Hybridization is the conventional way of
creating variation. In animals, mating is effected by introducing the desired sperm donor to the
female at the right time. In plants, pollen grains from the desired source are deposited on the
stigma of a receptive female plant. Pollination or mating is followed by fertilization and subsequently
development into an embryo. The effect of this action is the reorganization of the genomes of two
parents into a new genetic matrix to create new individuals expressing traits from both parents. The
ease of crossing of mating varies from one species to another. However, conventional breeding
technologies are limited by their long duration, need for sexual compatibility, low selection
efficiency, and restricted gene pool.51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to
transfer genes from one organism to any other, circumventing the sexual process. For example, a
gene from a bacterium can be transferred to corn. Consequently, DNA technology allowed scientists
to treat all living things as belonging to one giant breeding pool. Unlike other natural genome
rearrangements phenomena, rDNA introduces alien DNA sequences into the genome. Even though
crossing of two sexually compatible individuals produces recombinant progeny, the term
recombinant DNA is restricted to the product of the union of DNA segments of different biological
origins. The product of recombinant DNA manipulation is called a transgenic organism. rDNA is the
core technology of biotechnology.52

The organism that is created through genetic engineering is called a genetically modified organism
(GMO). Since the production of the first GMOs in the 1970s, genes have been transferred between
animal species, between plant species, and from animal species to plant species. Some genes can
make an animal or plant grow faster or larger, or both. A gene produced by flounder (anti-freeze)
was transplanted into salmon so that salmon can be farmed in colder climates. Many species offish
are genetically engineered to speed growth, to alter flesh quality, and to increase cold and disease
resistance. In farm animals such as cattle, genes can be inserted to reduce the amount of fat in
meat, to increase milk production, and to increase superior cheese-making proteins in milk.
Biotechnology has also modified plants to produce its own pesticide, resist common diseases or to
tolerate weed-killing herbicide sprays.53

Despite these promising innovations, there has been a great deal of controversy over bioengineered
foods. Some scientists believe genetic engineering dangerously tampers with the most fundamental
natural components of life; that genetic engineering is scientifically unsound; and that when
scientists transfer genes into a new organism, the results could be unexpected and dangerous. But
no long-term studies have been done to determine what effects GMO foods might have on human
health.54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest
molecular biology techniques. These plants are modified in the laboratory to enhance desired traits
such as increased resistance to herbicides or improved nutritional content.55 Genetic modification of
plants occurs in several stages:

1. An organism that has the desired characteristic is identified and the specific gene producing
this characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the cells of the
plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene works
adequately when it is introduced into the plant.

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

5. The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.

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

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major

constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop plants
which have been genetically engineered to withstand the application of powerful herbicides57 using
genes from soil bacteria eliminates the time-consuming and not cost-effective physical removal of
weeds by tilling. The herbicides to which the GM crops are tolerant are "broad spectrum" weed-
killers, which means they can be sprayed over the entire field, killing all plants apart from the GM
crop. Herbicide-tolerant crops include transgenes providing tolerance to the herbicides
(glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds of plants except those
that have the tolerance gene. Another important benefit is that this class of herbicides breaks down
quickly in the soil, eliminating residue carryover problems and reducing adverse environmental
impacts.58

Some plants are genetically engineered to withstand cold climates such as GM strawberries or
soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco and potato with anti-freeze gene from cold water
fish. Crops could also be genetically modified to produce micronutrients vital to the human diet such
as the "golden rice" genetically modified to produce beta-carotene, which can solve Vitamin A
deficiency and prevent night blindness in pre-school children. Other efforts to enhance nutritional
content of plants include the genetic modification of canola to enhance Vitamin E content or better
balance fatty acids, cereals for specific starch or protein, rice for increased iron to reduce anemia,
and plant oils to adjust cholesterol levels. There are also food crops engineered to produce edible
vaccines against infectious diseases that would make vaccination more readily available to children
around the world. For example, transgenic bananas containing inactivated viruses protecting against
common developing world diseases such as cholera, hepatitis B and diarrhea, have been produced.
These vaccines will be much easier to ship, store and administer than traditional injectable
vaccines.59

Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the
often opposing goals of meeting the human demand for food, nutrition, fiber, timber, and other
natural resources. Biotech crops could put more food on the table per unit of land and water used in
agriculture, thus resulting in decreased land and water diverted to human uses. Increasing crop
yields and reducing the amount of cultivated land necessary would also reduce the area subject to
soil erosion from agricultural practices, which in turn would limit associated environmental effects
on water bodies and aquatic species and would reduce loss of carbon sinks and stores into the
atmosphere.60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects. Based on
scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and
increase the risk of cancer, herbicide exposure, and harm to fetuses and infants.61 Independent
studies conducted went as far to conclude that GM food and feed are "inherently hazardous to
health."62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the
methionine content for animal feed. The protein was subsequently shown to be an allergen and the
product was never marketed. Genetically modified foods can introduce novel proteins into the food
supply from organisms that are never consumed as foods, which may pose a health risk. This may
elicit potentially harmful immunological responses, including allergic hypersensitivity.63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically
altered to produce lectins, natural insecticides, to protect them against aphids, damaged the
animals' gut, other organs, and immune system. Dr. Pusztai found that "the damage originated not
from the transgene and its expressed product but from the damage caused by the insertion of the
transgene, probably due to insertional mutagenesis."64 If confirmed, Pusztai's conclusions will
reinforce concerns that gene insertion itself may create new toxins; it will also implicate the toxin
commonly used in other genetically engineered crops - the Bt toxin which, Pusztai says, is also a
lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully spliced into the host organism, is another cause of
grave concern among scientists. These arm genes might unexpectedly recombine with disease-
causing bacteria or microbes in the environment or in the guts of animals or humans who eat GM
food, thus contributing to the growing public health danger of antibiotic-resistance of infections that
cannot be cured with traditional antibiotics (e.g., new strains of salmonella, e-coli, campylobacter
and enterococci).66However, recent advances in genetic engineering indicate that use of such
selection markers is likely to diminish with the anticipated development of alternative types of
marker genes.67

Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone
genetically modified to stimulate milk production in cows was found to elevate levels of IGF-1
(insulin-like Growth Factor-1, identical versions of which occurs in cows and humans) in cow's milk
by 80%. IGF-1 is reported to be a key factor in prostate cancer, breast cancer and lung
cancer.68 Dr. Samuel Epstein of the University of Illinois warned of the danger of high levels of IGF-
1 contained in milk cows injected with synthetic bovine growth hormone (rBGH), which could be a
potential risk factor for breast and gastrointestinal cancers.69

Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to worsen
modern diseases. A report published in the journal Entropy argues that glyphosate residues, found
in most commonly consumed foods in the Western diet courtesy of genetically engineered sugar,
corn, soy and wheat, "enhance the damaging effects of other food-borne chemical residues and
toxins in the environment to disrupt normal body functions and induce disease." Another research
demonstrated a connection between increased use of Roundup with rising autism rates in the US.70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-GMO
plants, creating super weeds and super pests, harming non-target species, changing soil microbial
and biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide
tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used by
organic farmers as a last option to deal with certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up resistance to Bt, thereby rendering the organic spray
ineffective.71 Lab and field tests also indicate that common plant pests such as cotton bollworms,
living under constant pressure from GE crops, will soon evolve into "superpests" completely immune
to Bt sprays and other environmentally sustainable biopesticides.72 In the case of HT, the
technology involves the combined use of a chemical herbicide and a GM plant. The herbicide is
generally a broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds while
leaving the crop plant alive as it is genetically engineered to be resistant to the herbicide. The
herbicide acts to inhibit an essential enzyme that is found in all plants and as a result is able to
eliminate all weeds whereas most conventional herbicides are selective in their action and target a
limited number of weeds. Concern has been raised regarding over-reliance on use of one or two
herbicides in increased amounts over time which leads to the emergence of herbicide resistant
weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert it into a
superweed. Pests and weeds will emerge that are pesticide or herbicide resistant, which means that
stronger, more toxic chemicals will be needed to get rid of the pests.73

It is a well-accepted fact that genetically engineered plants can move beyond the field sites and
cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread genes
further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and insect
pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and insect
pollination create obvious problems for nearby non-GM or organic crops.75 GM maize could cross-
pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at least 500-700
meters and still be viable and distances of several kilometers have even been reported.76 But many
experiments showed varying results and actual cross-pollinations were observed in Mexico up to
200 meters only, while in Oklahoma it was 500 meters. In crop species that are outcrossers, many
environmental factors influence the maximum pollination distance such as the size of pollen grains,
the humidity in the air, and the wind speed.77Brinjal is usually self-pollinated, but the extent of
cross-pollination has been reported as high as 48% and hence it is classified as cross-pollinated
crop. The cone-like formation of anthers favors self-pollination; but since the stigma ultimately
projects beyond the anthers, there is an ample opportunity for cross-pollination. The rates of
natural cross-pollination may vary depending on genotype, location, and insect activity. The extent
of outcrossing has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%)
at Asian Vegetable Research Development Centre; however the Indian researchers have reported 2
to 48% outcrossing in brinjal varieties in India. Outcrossing primarily takes place with the help of
insects.78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically
modified yellow corn which contains the pesticide Bt in every cell, was found in white corn tortilla
chips in Florida, USA. Starlink had been approved for animal feed but not for human consumption
due to concerns about dangerous allergic reactions. The Starlink incident is often cited to illustrate
how difficult it is to keep genetically modified crops from spreading.79

This gene flow to wild species is particularly alarming to environmentalists. The wild species from
which our agricultural plants originate are an important genetic resource for further plant breeding
if, for example, there is a requirement for improved resistance to climate change or plant pests.
Future plant breeding could be jeopardized if transgenes spread into these resources. Similarly,
agriculture in the centers of origin could be permanently damaged if transgenes spread into regional
landraces.80 Invasive species can replace a single species or a whole range of species, and they can
also change the conditions within ecological systems. Crossing can cause losses in the genetic
information of the original species, a reduction in genetic diversity and an ongoing incremental
change of genetic identity in the original plants. It is hard to predict which species will become
invasive.81 Indeed, GM crops could threaten the centers of crop biodiversity or outgrow a local flora
to the detriment of native species.82

Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees.
Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen to the
monarch butterfly because initial laboratory studies showed increased mortality in larvae. However,
in another study it was believed that it is unlikely that a significant risk to those butterflies exists.83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their
effects on microbial properties and enzyme activities. Results showed that there was persistence of
said proteins in soil under 4-year consecutive cultivation of transgenic cottons. Soil microbial
biomass carbon, microbial activities, and soil enzyme activities (except urease and
phosphodiesterase) significantly decreased in soil under transgenic cottons.84

In another review, it was stated that the direct effects of the plant that has been modified is of the
most concern since the introduction of transgenic proteins for pest and disease resistance can
involve the production of chemical substances that are potentially toxic to non-target soil
organisms, including mycorrhizal fungi and soil microfauna that are involved in organic matter
decomposition. Experimental studies have shown that the transgenic proteins Btcrystal toxin and T4
lysozyme, though used to prevent insect damage to the above ground plant parts, are not only
present in root exudates but that they maintain biological activity after entering the soil.85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include
compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion
of necessary minerals and nutrients that plants require. It was found that glyphosate "locks up"
manganese and other minerals in the soil so that they can't be utilized by the plants that need
them, and that it is toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There is likewise
evidence showing that glyphosates can make their way to groundwater supplies.86 In a study which
tested the effects of the herbicide Roundup on six species of larval amphibians from North America,
it was demonstrated that when we "use realistic exposure times and the frequently occurring stress
of predators found in natural ecologic communities, one of our most widely applied herbicides
(Roundup) has the potential to kill many species of amphibians." At the same time, the study noted
that Monsanto Corporation has recently released "an additional formulation of glyphosate (Roundup
Biactive), which contains a different (but unspecified) surfactant that is reported to be less toxic."87

Evidence of Damage or Threat of Damage to Human Health and the Environment

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

Further, the parties presented their respective expert witnesses who testified on the allegations
raised in the petition concerning damage or threat of damage to human health and the environment
resulting from the conduct of Bt talong field trials in the Philippines. The CA conducted "hot
tubbing," the colloquial term for concurrent expert evidence, a method used for giving evidence in
civil cases in Australia. In a "hot tub" hearing, the judge can hear all the experts discussing the
same issue at the same time to explain each of their points in a discussion with a professional
colleague. The objective is to achieve greater efficiency and expedition, by reduced emphasis on
cross-examination and increased emphasis on professional dialogue, and swifter identification of the
critical areas of disagreement between the experts.88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the
chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr.
Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cariño
appeared for the respondents.

The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving
as senior science advisor on agricultural biotechnology in the US Department of State, and editor for
plant physiology for McGraw-Hill Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable
report of a field trial of any GM crop that caused damage to the environment and to human health.
This involves more than 25,000 field trials in 20 years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation
of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and now
comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects
covering a period of more than 25 years of research involving more than 500 independent research
groups, show that consuming foods containing ingredients derived from GM crops is no riskier than
consuming the same foods containing ingredients from conventional crops. The World Health
Organization (WHO), American Medical Association, US National Academy of Sciences, European
Food Safety Authority (EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of
poorly done studies purportedly claiming negative effects, should be viewed with great caution and
have been highly criticized for their veracity by the overwhelming majority of highly respected
scientists. Many hundreds of studies show no harmful effects. To date, not a single rigorous study of
GM foods in animals has revealed any adverse effect; not a single case of allergy, illness, cancer, or
death have been shown to be associated with foods derived from GM crops, despite the fact that
they have been consumed by Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those
where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an
increase in insect diversity and abundance and a decrease in crop damaging insects not only
in Bt crop fields but also in surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve food
security worldwide, protect against devastating crop losses and famine, improve nutrition, and some
GM crop techniques help combat climate change.89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science
Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University, Forest Research
Institute now Ecosystems Research and Development Bureau of DENR and the Biotechnology
Coalition of the Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is
also in Bt eggplant has been found safe by many food and environmental safety regulatory agencies
such as those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina,
South Africa, Japan and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were
for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have been
reported. No report of adverse effects of Bt crop field trial exists. All claims of adverse health and
environmental effects of Bt crops has not been scientifically validated. The yearly expansion of GM
crop areas in both the developing and industrialized countries is an attestation of the preference of
farmers and the economic benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have reduced the
adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use
of pesticides, and also increased farmer incomes.90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology
(Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and
biotechnology, Osaka University, Japan, and Intellectual Property Management and Technology
Transfer, ISAAA AmeriCenter, Cornell University, USA. Director, and Research Associate Professor,
National Institute of Molecular Biology and Biotechnology (BIOTECH), UPLB; Philippine Coordinator
of the Program for Biosafety Systems; former Executive Director, Philippine Council for Industry,
Energy and Emerging Technology Research and Development, DOST; former Chair, Biosafety
Committee, DOST; and was a Member of the Institutional Biosafety Committees of UPLB and
International Rice Research Institute (IRRI); and was extensively involved in the isolation, bioassay
or efficacy testing and development of Bt as microbial insecticides for the control of Asian corn borer
and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on cross-
pollination or horizontal gene transfer, pollination distances, harm to beneficial organisms, and
development of insect resistance. To prevent cross-pollination, an isolation distance of 200 meters
from other areas where eggplants are grown or wild relatives are present, was observed, and with
five (5) rows of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance
of honeybees reaching 4 kilometers, what was not mentioned is the viability of pollen after it was
shed and travelled at a certain distance. Numerous literatures have shown that isolation distances
much less than 200 meters is sufficient to prevent cross-pollination. Two studies are cited: Sekara
and Bieniasz (2008) noted that cross-pollination at a distance of 50 meters was nonexistent; and
the Asian Vegetable Research and Development Center (AVRDC) indicated that eggplants produce
perfect flowers which may be cross-pollinated but self-pollination is more common, the extent of
natural crossing depends upon insect activity and this can be avoided by isolating each variety by
20 meters or with another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox the
recommended isolation distance; the 200 meters distance was found sufficient for pure seed
production in India (the same recommendation by Chen [2001] of AVRDC foundation for seed
production purity standards); field studies in 2 locations in India have shown that at a distance
beyond 30 meters no more outcrossing could be detected. Taking all these data into account, the
48% outcrossing being raised by petitioners is most likely for adjacent plants and therefore not a
valid argument for the on-going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of
insect pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera
(butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that
the gut physiology of these insects is very different from caterpillars, and not all caterpillars are
affected by it. There is a significant number of literature on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field trials
for Bt talong because of low selection pressure and limited exposure of the insect pest to Bt talong.
Insect resistance is not unique to GM crops as it is a commonly observed biological reaction of
insect pests to control measures like insecticides. In the event Bt talong is approved for
commercialization and will be widely used by fanners, this concern could be addressed by insect
resistance management (IRM); an IRM strategy should be required prior to the commercial release
of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed to
proceed so that scientists and researchers will be able to generate valuable data and information
which will be helpful in making informed decisions regarding the usefulness of the technology.91

For Respondents

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

He is concerned with how GMOs are being introduced for commercial-scale use (as against being
used for academic research) in the Philippines on the following grounds: (a) how they might
contaminate the indigenous genetic resources of the country; (b) how they may cause an imbalance
of predator-prey relationships in ecosystems, so that certain species might dominate ecological
niches and erode their biodiversity and ecological stability; (c) how they may erode the ability of
farmers to control their genetic resources to sustain their cropping systems; and (d) how much are
present biosafety protocols able to safeguard the long-term ecological and economic interests of the
Philippines as a particularly biodiversity-rich country and which is, therefore, highly sensitive to
genetic pollution; to the extent that its biodiversity is its long-term equity to advances in
biotechnology, the most robust measures must be taken so that such resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted
using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a
set of standards for determining the level of robustness of biosafety measures and protocols that
would be acceptable in the particular case of the Philippines; include required scoping and internal
and external validity requirements of impact and safety assessments; Stage 2 - Using the criteria
produced in Stage 1, develop biosafety measures and protocols to be adopted in the Philippines;
and Stage 3 - Apply the protocol with the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country; biosafety
must be based on an enactment of Congress and open to challenge and adjudication against
international laws; provisions must be made to make it a crime against humanity to recklessly
erode and weaken genetic resources of our people.92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant
Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person
in more than a hundred trainings and seminars, both local and abroad; served as member in
international agricultural assessment sponsored by Food and Agriculture Organization (FAO), United
Nations Environment Program (UNEP), WHO, and the World Bank; worked on a project for
development of resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and
served as researcher and later Associate Professor of Environmental Management of the UP Open
University.

Based on her studies and extensive experience, the Bt talong field testing poses the following risks
or hazards: (a) While natural Bt sprays used in organic farming have little effect on non-target
organisms because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic when
processed and reduced in the gut of certain (targeted) species of insect larvae, in contrast, Bt plants
contain an artificial, truncated Bt gene and less processing is required to generate the toxin because
the toxin is already in its active form. It is therefore less selective, and may harm non-target insects
that do not have the enzymes to process the pro-toxin, as well as the pests for which it is intended;
(b) Bt proteins from natural Bt sprays degrade relatively quickly in the field as a result of ultraviolet
light and lose most toxic activity within several days to two weeks after application. In Bt crops,
however, the Bt toxin is produced by the internal system of the plants thus non-degradable by mere
exposure to sunlight and generated throughout the entire lifespan of the plant; (c) Bt talong can
also affect the environment by harming important or beneficial insects directly or indirectly.
Genetically engineered Bt eggplant, like other Btcrops, could be harmful to non-target organisms if
they consume the toxin directly in pollen or plant debris. This could cause harm to ecosystems by
reducing the numbers of important species, or reducing the numbers of beneficial organisms that
would naturally help control the pest species; (c) The evolution of resistance to Bt crops is a real
risk and is treated as such in ecological science throughout the world. If enough individuals become
resistant then the pest control fails; the pest becomes abundant and affects crop yield. Granting the
pest control practice is successful, it may also simply swap one pest for another, a phenomenon
known as secondary pest outbreak. Several studies have shown that other pest insects are filling
the void left by the absence of the one (or very few) insect pests that Bt crops target, and this is
now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt
talong will eventually lead to contamination of non-genetically modified eggplant varieties. Insects,
particularly honeybees, can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen
trap area in the confined field testing set by BPI is not sufficient. And once contamination occurs,
genetic cleanup of eggplant or any other plant is impossible. Moreover, intra-specific gene flow
from Bt talong to other varieties and populations of eggplants should be examined, as cultivated
eggplant (Solanum melongena) can cross breed with feral populations of S. melongena, and it is
possible that cultivated varieties can revert to wild phenotypes. Additionally, there is likely to be
natural crossing between Bt talong and wild relatives. Hybridization with perhaps as many as 29
wild relative species needs to be evaluated carefully and the consequences of any hybridization that
occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision for
moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the reasons
why the release of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota also
published an 84-pages report on the Environmental Risk Assessment of Bt Brinjal, and among his
conclusions is that several environmental risks were not considered and nearly all the risk
assessment done were inadequate. He concluded that until the risks were understood or managed,
there seems to be little reason to approve Bt Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University;
Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the
Council of Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB);
Member, Governing Body and Executive Committee of the state council of Biotechnology,
Government of West Bengal and Chairman of the Biotechnology group of the state council of
Science and Technology, Government of West Bengal; Visiting Professor of the National Institute of
Science, Technology and Development (CSIR-NISTAD); citizen of India and resident of Kolkata,
India.

GMO is a classic example of "paradoxes of consequences", where human actions have unintended
consequences, which are in direct opposition to what was intended. The difference in controlled
laboratory condition and standards, and real life open field level micro and macro-environment
pushes the advantage towards the target and non-target living system, with time. The pest
resistance to Bt toxin and development of herbicide tolerance (HT) in weeds is just a matter of time.
The decade long experience in Bt and Ht genes amply proves this point. If we ignore this now - we
are manufacturing a global environmental disaster - which will be a crime against humanity. There
is no way to recall these GMO from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will
help the monopoly agribusiness and the expenses of monopolistic competition or cooperative
organic farming. Hot climate and rich biodiversity is detrimental towards the effectiveness
of Bt constructs, and helpful towards unintended gene flow. Moreover, the genetic manipulation is
no way fail safe or exact. Shotgun techniques are being adapted, aided by focused laboratory based
screen of traits - rather than the host or the full natural product. The GM labeling is avoided to
cover up this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness.
Before going ahead with spread of this technology, even in a batter form, the foremost task is to
establish rigorous test and assessment procedures. There are excellent available tools of
preteomics, transcriptomics, and metabolomics for detailed compositional analysis in our hand to do
this. Please ask, why they are not being employed? In fact, there is not a single centre to test GM
products on behalf of the corporate GM Agribusiness house. Thus, low level, long term toxicity of
GM foods are yet to be tested. I believe the time has come to establish a standardization facility to
carry out such test facility in any country before giving permission to GM trial or cultivation.94
ChanRoblesVirtualawli bra ry

The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
Dr. Cariño:chanRoble svirtual Lawli bra ry

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not
supposed to be consumed at the moment still under field trial, so it is not supposed to be eaten at
the moment. It has not been released for food nor for feed and so in the context of a confined field
test, it has supposed to have it out in the field in a very controlled manner and any produce that
comes out from that area is supposed to be destroyed or kept from further safety and analysis only.

Chairperson: chanRoble svirtual Lawlib rary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?

Dr. Cariño:chanRoble svirtual Lawli bra ry

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of
the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually published
on relative safety of CrylAcc protein and it is actually considered as an additional protein and the
various reviews can be seen in the OECD Digest of risk assessments on CrylAcc protein.
Alternatively, if you are looking at the possibility of harm coming from the introduced protein as yet,
we have not done a full blown assessment of it as of the moment. But we look at the protein
sequence and with a comparison of its sequence with other sequences in the data basis to see if it is
similar to this amino acid sequence of other known toxins and, so far, I have actually ... in my
affidavit, I have actually seen personally that it is not closely related to any of the known toxins that
are found into its system.

Chairperson: chanRoble svirtual Lawlib rary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?

Dr. Cariño:chanRoble svirtual Lawli bra ry

Right now it is not meant to be consumed by human at this point. Let me just clarify one point.
When any GM material is supposed to be introduced for food and for feed and before it is actually
utilized for life skill production, it goes through several steps. The first step is actually the "lab",
laboratory work and it is actually tested in this clean-houses, rolled-out confined limited field test
and then it goes to butyl abyss of field tests where it is like generating more and more informations.
We are still early on in this pathway, so we are only in the confined field test and, at the moment,
the thing is that it is still being tested. The focus is on its efficacy after doing a preliminary
assessment of the possible pathological and ecological effect, and that is the pathway that has been
recommended by so many academics as well as scientific institutions as well. And, that has been a
tract followed by almost all the genetically modified crops that is being introduced in the market
today, but at the moment BT Talong is not yet a commodity. It is not yet being evaluated as a
commodity.

Chairperson: chanRoble svirtual Lawlib rary

So, no one in this country has yet eaten this BT Talong?

Dr. Cariño:chanRoble svirtual Lawli bra ry

No, it has not been eaten, as far as I know. Even in India it has not been consumed by human
beings because it has not been introduced as a commodity.

Chairperson: chanRoble svirtual Lawlib rary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of
course?

Dr. Cariño:chanRoble svirtual Lawli bra ry

If it passes the safety assessments. That there is always a peak condition that, if it would not to be
evaluated in a step of the way much like to evaluate any new product that is coming into the
market evaluation, goes on a step-by-step and at least day-to-day basis.

Dr. Davies: chanRoblesvi rtual Lawli bra ry

Your Honor, may I interject, may I suggest with your permission? I would just like to make a little
bit of explanation.

Chairperson: chanRoble svirtual Lawlib rary

Proceed.

Dr. Davies: chanRoblesvi rtual Lawli bra ry

I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I
think of the name BT toxin is very fortunate. It is really a protein. A protein is an essential
constituent of life. It is an essential constituent of our food. In the human body, and in the body of
other animals, this protein is under the same as any other protein in food. It has no effect on the
human body. This has been shown for many, many years, knowing BT Talong but BT has been a
constituent of "maize" in commercial production for 16 years.

xxxx

Dr. Davies: chanRoblesvi rtual Lawli bra ry

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans
in corn products and by any other people who in[g]est American maize corn products x x x. There is
not a single case of illness or toxicity or allergenicity that can be or that has been associated with
this protein and, therefore, any food containing this protein has been declared by authorities in all
the countries that was mentioned by my colleagues, including the European Union and the United
States x x x to be as safe as any food derived from the same plant species not containing this gene.
I hope that explains a little bit about what it is.
Chairperson: chanRoble svirtual Lawlib rary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that
Monsanto's genetically modified corn is linked to cancer?

Dr. Davies: chanRoblesvi rtual Lawli bra ry

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini?
I think this is one of the publications by Seralini's group. Dr. Seralini's work has been refuted by
International committees of scientists...

xxxx

Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake
venoms. They are poisons, so whether it is protein or not that is not the question. So proteins
obviously venoms and proteins and enzymes and they are poisons so protein can be a poison so
that is now the point at all to be considered. The second thing is, yeah, low level toxins long term
in[g]estion of this BT toxin in human or in any other animal have not been tested. So that is true so
we do not know direct consumption of this, because notice have been turned down, that is the
objective fact. The third point is about the "American Corn", and if I can give you such anecdotes,
"American GM Corn" are not labelled, how do you know that? What is its effect? What is its toxicity?
And, obviously, there are more than a hundred of papers showing and published in very good
journals. I can give many references which have shown the detrimental effect of BT Toxin.

xxxx

Chairperson: chanRoble svirtual Lawlib rary

But before having this BT talong scheduled and allowed for field testing, is it not proper that it
should be first determined whether this food product is really safe for eating or not?

Dr. Cariño:chanRoble svirtual Lawli bra ry

There is an initial assessment that is generally done and according to the Codex Alimentarius of the
WHO, the thing that you do at this early stage of development is to compare the sequence of the
protein that is being introduced with published sequence of allergens, as well as toxicants and
toxins. So that has been done. Then you have to look for instability under heat conditions because
there is seldom do we heat grow eggplants, so is it stable under heating. Is it stable in the presence
of digestive juices? And, if the answer is "yes", there is at least fair certainty, a fair assurance that it
is likely to be safe but then you start thinking of what other component not present in the product,
does this. For example, any product that we consume today has something that is bad for you,
otherwise, you will not see it right now. Otherwise all the different herbivores will be eating it up,
right? It will be extinct if it does not have anything to protect itself and, so, the thing is one, to
quantify how much of that has changed when you lead the genetic modification. So "Talong" has
been known to have Solanine and glycoalkaloids whose level well have to quantify. We have not
done that yet. They have not submitted the data for that and this as secondary metabolize whose
relative concentration will change depending on the environment to which you actually place the
system.

Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You
known that BT Cotton was introduced in India through the back door black market entry. During the
field trial, some of those seeds were taken out and given to the farmers for commercial cultivation
to black market. Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not sue now
apparently sue the company and they compelled the government that farmers wanted those things
and there was high ... how they pressurized the government. Now, in case of BT cotton is one thing,
but BT Eggplant is completely a different thing. That is why [the] Supreme Court in India has taken
a very strong stand and, now, the parliamentary committee in India. The Supreme Court has also
taken steps stand with the field trial. The first thing in field trial we had to see that whether there is
a definite need of this kind of intervention, because the eggplant is a very common vegetable in this
part of the world. There are so many hundreds of varieties here, these are the origins of these
varieties of this kind of vegetable. It is cheap. It is available everyday. So why you go on changing
if there is no crisis in cultivating the eggplants at present. Therefore, when you give it to this
patented seeds technology, its prices will increase, lot of restrictions had to be deal. So, who will
consume this high price eggplant. Many will be exported, that was why the proponents are looking
into it. But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being given.
There is a moratorium in India from the Supreme Court and from the government side on field trial
of BT Brinjal. Now, if x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a
bypass, and who will guarantee that it will not go to the farmers?

xxxx

Justice Antonio-Valenzuela: chanRobl esvirt ual Lawlib rary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of
the planting .... of the existence of the genetically modified organism, for example, on insects, on
the soil, on the air? And then I was thinking, does this have this particular protein that result[s] due
to the genetic modification? Is it ... how is it expelled, for example how does it go into the
environment? Or, on the other hand, how does it go inside and out of human system so that does it
disintegrate or is it just there forever? I am very curious, sir. You have to educate me.

Dr. Davies:chanRoblesvi rtual Lawli bra ry

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

xxxx

Dr. Davies:chanRoblesvi rtual Lawli bra ry

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific
receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of these
insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and the beetles
but it will only affect if they try to eat the plant. Now, you are asking us if what is the effect on the
environment. x x x I would like to cite x x x a recent paper published in the journal "Nature" x x x
the most prestigious scientific journal in the world, x x x published in "Nature" in June this year and
this is the result of a study of "insects" in BT Cotton fields in China in 17 locations for 14 years of a
long period study. And these scientists revolt that they show a marked increase in the abundance of
three types of generalist arthropod predators (ladywings, lacewings and spiders) and a decrease in
abundance of aphid pests associated with widespread adoption of Bt cotton. And they are referring
to China and they conclude that such crops, x x x BT crops, can promote beneficial control services
in agricultural landscapes. And, it also showed that these effects extend beyond the field. So,
essentially x x x they found that there were more insects than in conventionally grown cotton and
the insect diversity was greater surrounded than being detrimental to an agriculture ecosystem
such BT cotton falls beneficial.

Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another
news article, "Battlefield". One stream ecologist in United States itself, in a university, she has
studied the effect of growing BT Corn in the field and what is the effect on the stream ecology, the
west water, what is happening to other insects, insects in which it is getting that BT toxin will not
go. Yes, she has found that stream ecology...
xxxx

Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in
Illinois published that paper, published that article in PNAS or Proceedings of the National Academy
of Sciences, a prestigious journal? Now, they have to desert her. She was abused, so her file was
taken out. So people started e-mailing, threatening her. So "Nature" has to publish that. How dirty
the field has become so they entitled it "Battelfield." If anybody produces any evidence
that BT Toxin or GM Technology is doing any harm to the environment then it will be battered by
the entire English lobby so there is worst the situation. But National Academy of Sciences in United
States has taken a strong decision and, in last year, there were six publications that published
where strong evidences are being produced about the environmental and ecological damage
cause[d] by this technology. So, that is the case.

Dr. Davies: chanRoblesvi rtual Lawli bra ry

Can I respond to that, your Honors?

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

I think Filipinos should be able to talk also here.

Chairperson: chanRoble svirtual Lawlib rary

Can we give a chance to Dr. Malayang?

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

x x x My concern is on the process and participants in vetting the safety of GM crops, not
necessarily the intricacies of the science involved in genetic modification per se which, I think our
international friends, would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or

produced from the most robust sciences, a technology could fail to be as useful as it was intended
or its use lead to an [unintended harm to humans and the environment. This is so because science,
by nature, as many scientists will agree, is very probabilistic rather than absolutist. Many cases of
common knowledge illustrate this point. May I just refer, for the Court's notice for, First, the Nuclear
Power Plants in Japan x x x. The best science and the best technology did not necessarily translate
to absolute safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a
plant to take advantage of a large pesticide market in India to help the country's farmers led to a
massive and deadly safety failure.

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

And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the vetting
processes using rigid safety and risk assessment methods, they still could cause side effects entirely
undesired and many of which can cause chronic or acute threats to human life. This includes the use
of "DDT" that was used to control lice among soldiers after the II World War which, after all, proved
to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and
context, the particular place and context of the introduction of BT crops like BT talong. x x x the
Philippines is among the world's biologically rich countries. x x x So, many of our insects are not
even fully known. We do not know how they all behave to influence the transfer of genetic materials
from plants to other plants. We do not fully know what we do not know about the intricate
interactions between plants and between insects and other living things that define the universe of
our healthful and balanced ecology. The universe of our healthful and balanced ecology certainly go
beyond specific crops. I am concerned that, absent a full as against partial understanding of the
intricate web of genetic flows and interactions among plants, animals and other living things in our
wet and tropical ecosystems, it will require extraordinary care to tamper with any one element of
this swirl of interrelationships. This is notwithstanding the seeming preponderance of evidence of
safety in other countries and environment that are certainly not the same as ours. x x x we must be
extra careful because the effects might be irreversible. Introducing a genetically modified plant x x x
could cause a string of changes across many plants that, like the green revolution or in the case of
medicine and the two other cases cited above, could turn out and only to be realized much later to
be harmful to humans and the environment more than they were intended to be useful. x x x let us
ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high
biodiversity this is a particular condition in the Philippines; and (2) tested for error levels that are
acceptable to or which can be tolerated by our people. My affidavit states a three-stage approach to
this. x x x the tests that we will be doing is a test process acceptable to all as well rather than
merely concocted or designed by just a few people x x x must be a product of wider citizens'
participation and reflect both scientific and traditional knowledge and cultural sensitivity of our
people. It is in the NBF after all, x x x introducing BT Talong in the Philippines must be decided on
the grounds of both science and public policy and public policy, in this case, must involve full public
disclosure and participation in accepting both the potential gains and possible pains of BT Talong.
The stakes, both positive and negative, are so high that I believe BT Talong would require more
public scrutiny and wider democratic decision making beyond the [realm] of science. x x x for the
sake of our country and our rich biodiversity x x x prudence requires that maximum efforts be
exerted to ensure its safety beyond the parameters of science and into the sphere of public policy.
For to fail in doing so what might be highly anticipated to be beneficial may in some twist of failure
or precaution and prudence and failure for due diligence to establish the safety of Bt Talong beyond
reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do not want
to do. I submit these views to the Court.

xxxx

Dr. Davies:chanRoblesvi rtual Lawli bra ry

x x x another thing I would like to point out to the Court is, if you come into a market in the
Philippines and you see nice Talong, it has probably been treated with various insecticides. So, there
has been insecticide spray on your tips in your crops which are going to be harm on your farmers,
your farmer's children, the insect populations and also dangerous to the consumers as well. By
contrast, Bt Talong, if it is adopted, the BT has been shown to be beneficial to the insects and the
environment and also has been shown not to be toxic in food. Therefore, we are changing a highly
toxic chemical application for a much more benign modern technique that is beneficial to the
environment and beneficial to the consumers. That is my comment with the views just made by my
Filipino colleagues, your Honors.

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

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

Dr. Saturnina Halos: chanRoblesvi rtual Lawli bra ry

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use
of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we
have a very strict highly monitored field testing and I think Dr. Malayang knows about that because
he was one of those who prepared the guidelines for the field testing. So that is not going to
happen, it is a very strict regulatory system. We are known for that, actually, and...

xxxx

Dr. Saturnina Halos: chanRoblesvi rtual Lawli bra ry

No, no. It does not happen because we have a risk management plan x x x.

xxxx

Dr. Halos:chanRoblesv irt ual Lawlib rary

x x x As far as do we know what is happening after we have given approval, yes, we are
monitoring. We are monitoring as far as BT corn is concerned. We are monitoring, continuously
monitoring, not only for the beneficial insects but also the effects that is continuing, we are also
continuing to monitor the weeds, weed population. In weed we decide to spray...

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos:chanRoblesv irt ual Lawlib rary

No we have to know what is happening.

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why
monitor?

Dr. Halos:chanRoblesv irt ual Lawlib rary

Well, we are going to give you the data for that because you keep on asking, you know, you asked
for a long term and we are going to give you that complete data.

xxxx

Dr. Medina: chanRoblesvi rtua lLawl ibra ry

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies
mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are
safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds of protein x x x it is
a misleading generalization. Secondly, I would like to say also that, when you say that BT crops is
beneficial to insect population but, how about humans? But, let me tell and inform the Honorable
Justices also that, in agriculture, there can be, the pests are there to reduce the yield. There are
also diseases so, that this Bt is only controlling one kind of pest and, in my monitoring of BT corn as
an example to this 2 years after the commercialization in 2003, at first planting in 2003, the corn is
attacked by about a dozen insect pests and six major diseases. The Bt corn was attacked a "stem
rot", a fungal disease. And, in this case in eggplant, there are many fungal diseases, "phomopsis" x
x x So in that case it is not field safe that you will not be using pesticide anymore with BT eggplant.
When you use the BTeggplant, assuming that there is no more insect pests x x x There are many
other methods of control and, therefore, do not assume that you do not use pesticide therefore, BT
is the only solution. That is also a risky and wrong generalization or statement, x x x Dr. Halos x x x
says that field tests are safe. I intend to disagree with that. Safe to what? Especially to
contamination. If I may use this picture of the field testing of the Bt eggplant x x x it was encircled
with cyclone wire with a diameter of something like approximately 10 cm. by 7 cm. hole. While bees
that can pollinate that, the size is about 1 cm. in length and .5 cm. in diameter of the insect. The
bees and, in that case, they can easily get in and get out and when they settle into the flowers and
snip nectars and the fall of the pollen then they can bring out the pollen to contaminate outside
that. In fact, even assuming that the fence is very small in size of the mess, the holes, still the
insects can fly above that fence because the fence is only about 5 feet in height. So, in that case it
is not safe. Some arguments say that "well the pollen will be dead" but, according to this technical
manual of the Training Workshop On Data Collection for Researchers And Collaborators of Multi-
Location Trials of Fruit and Shoot Borers Resistant Eggplant, that is the Bt Eggplant produced by the
Institute of Plant Breeding in UPLB who is one of the main researchers the datas, here say according
to "Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days pollen by ability at 20 to 22
degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to say, that pollen can
survive. This can fly as fast as something like 60 kilometers per hours so it just take may be 3
minutes and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in
their normal foraging.

xxxx

Dr. Medina: chanRoblesvi rtua lLawl ibra ry

x x x There is no data on the contamination so how come they argue, how can they conclude that it
is safe when they have not monitored any potential pollen flow by insect mitigated or insect
mediated flow pollen? So, in that case, the conclusion or the statement is really beyond what their
data may be is if their data is about safety.

xxxx

Dr. Ebora:chanRoblesvi rtua lLawl ibra ry

xxxx

x x x I hope that we will be able to look at the experimental design and you will see that all the
things are properly addressed, our risk assessment was done step by step, x x x I beg to disagree
with my friend Dr. Medina because it is becoming ... we are confusing 2 things. We are not referring
to contained trial. We are referring to confined field trial and in the design of this particular
experiment, you have your BT eggplant, your non-BT eggplant so that you can compare the
performance with the 2 crops. And, on design, you have 5 rows of plant BTeggplants that will serve
as a pollen trap. When we say pollen trap is that it just open the pollen from the transgenic. It is
going to be trapped by those plants, 5 rows, and then, after that, you have a space of 200 meters
surrounding the field which is the isolation distance. That means no eggplant should be present in
that particular distance because that is the isolation distance that is found to be safe, x x x we know
that Bt protein is very specific x x x effective only against caterpillar x x x if they are eaten by other
organism, they are not affected because it is very specific. The gut of the larva is very alkaline while
the gut of other insects is likely acidic and, in that case, it does not have any harmful effect, x x x
So another thing is we are saying that it seems to be ridiculous that you are saying that honeybee is
going to fly from the fence and the size were even indicated. I would like to indicate that, that is not
the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite,
unfortunately, being done by other groups who are against the technology. x x x We should be able
to have our own space, our own time, considering the given regulation. Follow them. But our
experimentation not be destroyed because it is only then that we will be able to get the valuable
data that is needed for an informed decision. Without that we will not be able to proceed and I hope
we can discuss this based on the merits of the field trial, not from any other concern because the
writ of kalikasan is about the effect of field trial in the environment.

Dr. Medina: chanRoblesvi rtua lLawl ibra ry

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that
the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if
you can read by chemical and by physical research communications this is Volume 271, pages 54-
58, authored by Vasquez Pardonnet, published in 2000, publication under letter (b), "CrylAcc
protoxin" binds to the mucosal surface of the mouse small intestine. Small intestine ay mammal po
iyan so, meaning, it is a proxy animal for safety [testing] to humans because we are also mammals
so, the mice are usually the mammals 12 years ago, the data has been already there that there is
binding site, therefore it is not only specific to insects but also to mammals. x x x he is saying that,
by working on the natural BT is the same as the transformed BT it is not true because the
natural BT has 1155 "base pairs" of nucleic acids. And the transformed GM Crop contains a
fragment of that BT gene which is only half of that. And the mechanism, by the way, x x x the
natural toxin is broken into smaller pieces inside the intestine of the insects because it is alkaline in
terms of its system "ph" and for humans acidic. So it does not work. But, because the transformed
BT is already half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect to non-
insect, meaning, to mammal, so that is the explanation of scientist doing studies on that aspect.

x x xx

Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x
x x I will give some example. Yes, BTtoxin, was it really good biological control agent? But it is a
completely different gene when you produce it into an edible plant inside genetically. So, these are
2 different things. What will happen? We are scared that the efficacy, the use of BT toxin as a spray,
as biological control agent, will be vanished because now there will be resistance against those
in BT toxin, x x x resistance is coming very quickly, just like antibiotic resistance, x x x The second
thing, I have asked many plant biologists this simple question, simple honest question. Do you
know any plant that can kill a bee or a moth? No! There is no way, why? Because those are the
"pollinators". Plant never kills a bee or a moth that goes against nature, x x x So, nature, for
thousands of years, farmers help select or adopt edible non-toxic plants. And, now, with the high
science we are converting them, non-toxic edible plant into a toxic plant. So not only toxic for the
human, for the root microorganisms, x x x Those eggplants are not only for humans to consume. So
human effect, we do not know but what will be the effect? Who will mind the effect? Is it the animal
which goes through it? x x x in India, x x x farmers x x x while growing BT cotton x x x the leaves
and other they use to attract animals to eat. x x x they found suddenly one thing that the BT cotton
plants are not touched by those buffalos, those cows, those [boars], but they can distinguish which
is BT and non-BT. x x x and when their animals started dying in some cases, they always blame, it
is this animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed
plants are there and we are converting one safest plant into a poisonous and toxic plant and what is
the effect on the root microorganisms on the degrading animals and other? We do not know. That
hard thing is the tunnel vision, the confined field trial, x x x why implement this confined field trial?
Is this safe? Why do they have to do this x x x these things do good for a normal hybrid that is
something but for the gene concept we cannot follow the same separation rules, same rules? So
those are used, those separation distincts, those parameters are used not for the gene. So, which is
the safe field trial protocol for the gene plants? We do not know. So there goes against [the] writ
of kalikasan.

xxxx

Justice Antonio-Valenzuela: chanRobl esvirt ual Lawlib rary

How much is the increase in crop yield? x x x

Dr. Halos:chanRoblesv irt ual Lawlib rary

x x x The average increase yield is about 24% and that is for corn. And this data is actually taken
by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.

xxxx

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so,
you mean to say that corn production in the country has gone up and, because of that, you are
saying that 24% and the income of farmers had gone up as well? Do you mean to say that the price
of com had also gone up as a result of the increase in the volume of com production in the
Philippines?

Dr. Halos:chanRoblesv irt ual Lawlib rary

Well, the price is dictated by the market.

Dr.Malayang: chanRoblesvi rtua lLawl ibra ry

That is precisely the point.

Dr. Halos:chanRoblesv irt ual Lawlib rary

Yes.

Dr. Malayang: chanRoblesvi rtual Lawl ibra ry

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology
such as GM Com or GM Talong affecting market there is also not only the regulatory but economic
regime that is attendant to it that makes adjustments. So it may not be harmful to humans because
we will not come out when we eat it but it might be harmful to the economy of a particular
agricultural crop. x x x

xxxx

Dr. Ebora: chanRoblesvi rtua lLawl ibra ry

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those
are independent studies. And, precisely, this is to determine the effect on natural enemies and the
different insects x x x and some of those are already available, x x x you will be able to protect the
environment only if you know how to have a proper information in making the decision. So, again, I
am saying that, in field trial, you will be generating a lot of information that you will be able to use
in making a wise decision and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not affected by BT because they are adult insects. The only
one that is affected are actually the larva, not even the pupa. So, we would like that to be clear
because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime
and that is the reason why we have a continuous breeding program. So, it is a natural mechanism
by an organism as mode of ad[a]potation. x x x are you telling us that we are going to stop our
breeding work because, anyway, they are going to develop resistance. I think it is a wrong message
x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology,
you can have the effect if you have, for example, the insects, you have a receptor. The toxin will
bind into the receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you
eliminate one of those steps you do not have any toxicity. So, that means binding by itself will not
be toxicity. It is a wrong impression that, since you have binding, there will be toxicity. It is simply
wrong because, the actuality that it should bind, it should fall then, it should insert, and it is a very
common x x x. To say that binding is equivalent to toxicity is simply not true.

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

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is
why you have to characterize them and you have to separate the protein that are causing problem
and protein that are not causing problem. That is why you have allergen and, as explained by Dr.
Cariño, you have to check the sequence. x x x

xxxx
Dr. Chakraborty: chanRoblesvi rtua lLawl ibra ry

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the
production not that much into the safety. You have to look into it carefully that how much will get
this efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned
that European Union there is no consensus, x x x they have published and submitted the systemic
list of genetically modified crop need for new approach in risk assessment. So that is what is
needed. There is another article, how does scientific risk assessment of GM crop fit within wider risk
analysis, x x x This is genetic engineering. The production process is very precise in selecting the
inserted gene but not in its enhancement, x x x they are never looking into it. The second thing,
they do not look into that from the laboratory condition to what is the real life situation. They do not
take that into account x x x so this assessment protocol has to be modified or changed, x x x in the
IAASTD or International Assessment of Agricultural Knowledge, Science and Technology for
Development. There is a supreme body, so many nations, so many experts, scientists x x x. Only
sustainable agricultural practice and that is the only alternative. This GM technology is not going to
help them x x x In my country also, when the BT toxin evaluation was there, everybody was telling
that this is pro-poor, this is scale neutral so, everybody will be benefitted by that. So, we started
questioning, x x x "What are the actual economic analysis indeed? Just show me". Then, they come
up with an answer. Scale neutral means that even small farmers initially wanted BT cotton and big
farmers also wanted BT cotton. They are partisans. It is not the economic benefit because,
economically, it is not going to be beneficial so it is very much scale dependent its benefit. So, only
the big farmers, large farmers and x x x the vegetable field you never can give separation. Chances
you never can give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it
cannot help technology. They have developed this technology for partisan large scale farming to
completely automated for BT technology where no label will be there. But the failed experiments,
the contracts whose patent will be over within 2-3 years, they are testing them in our country. So
that is the bottom line.

xxxx

Chairperson: chanRoble svirtual Lawlib rary

Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of the field trial
of BT Talong by the respondents has violated or has threatened to violate the right of the people to
a balanced and healthful ecology. Is there absolute certainty that it has not so violated such right.
Because that is the requirement for applying or not applying the precautionary principle, x x x

Dr. Cariño:chanRoble svirtual Lawli bra ry

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson: chanRoble svirtual Lawlib rary

But there is no absolute certainty?

Dr. Cariño:chanRoble svirtual Lawli bra ry

Well, quite certain, your Honor, because we have placed all the necessary measures and they did
not show us, you know, there is no evidence of harm that has been shown to this Court. There is no
evidence at all.

Chairperson: chanRoble svirtual Lawlib rary

That is your opinion.95 ChanRoblesVirtualawli bra ry

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of
contention between the expert witnesses, i.e., the safety of Bt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of scientific
studies conducted from the time Bt technology was deployed in crop farming. These divergent views
of local scientists reflect the continuing international debate on GMOs and the varying degrees of
acceptance of GM technology by states especially the developed countries (USA, EU, Japan, China,
Australia, etc.).

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

Seralini's findings created an uproar and the study was expunged from the publication in November
2013 even though the Editor-in-Chief found no evidence of fraud or intentional misrepresentation of
the data. Seralini stood by his work and further conducted similar laboratory experiments. Critics
faulted the experimental method, saying the number of rats studied was too small and their diet
was skewed when compared with their natural food intake. But over 300 scientists condemned the
retraction, they said that the retraction lacked scientific integrity and requested to reinstate the
study. Last June 2014, Seralini's controversial study was republished and has passed a third peer
review arranged by the journal that is republishing the study, Environmental Sciences Europe. The
republished version contains extra material addressing criticisms of the original publication and the
raw data underlying the study's findings, and accompanied by a separate commentary by Prof.
Seralini's team describing the lobbying efforts of GMO crop supporters to force the editor of
the Food and Chemical Toxicology to retract the original publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing relevant
information for effective regulation of GMOs. There can be no argument that "[s]ince scientific
advice plays a key role in GMO regulations, scientists have a responsibility to address and
communicate uncertainty to policy makers and the public."98

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by
extensive use at present of GM technology in agriculture. The global area of GM crops has reached
over 175 million hectares in 2013, more than a hundredfold increase from 1.7 million hectares in
1996.99 However, the worldwide debate on safety issues involving GM foods continues.

It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of
the technology itself. The process of combining inter-species genes, which is called recombinant
DNA technology, does not have the checks and balances that are imposed by nature in traditional
breeding. Because of this there is a risk of genetic instability. This means that no one can make any
accurate predictions about the long-term effects of GMOs on human beings and the environment.
Extensive testing in this regard is either very expensive or impractical, and there is still a great deal
about the process that scientists do not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been developed in
close collaboration under the auspices of the Organization for Economic Co-operation and
Development (OECD) and the United Nations World Health Organization (WHO) and Food and
Agricultural Organization (FAO). The OECD's group of experts on biosafety recommended
conducting the safety assessment of a GM food on case-by-case basis through comparison to an
existing food with a long history of safe use. Thus, the concept of substantial equivalence was
developed that is widely used by national and international agencies, including the US Food and
Drug Administration (FDA), the WHO, OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is found to be
substantially equivalent to an existing food or food component, it can be treated in the same
manner with respect to safety (i.e., the food or food component can be concluded to be as safe as
the conventional food or food component)."102 The safety assessment of a genetically modified food
is directed by the results of a comparison between the genetically modified food and its
conventional counterpart. It follows a stepwise process aided by a series of structured questions.
Factors taken into account in the safety assessment include:
• identity;

• source;

• composition;

• effects of processing/cooking;

• transformation process;

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

• protein expression product of the novel DNA:

• effects on function;

• potential toxicity;

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

• potential intake and dietary impact of the introduction of the genetically modified food.103
ChanRobles Vi rtua lawlib rary

The above factors are particularly pertinent to the assessment of foods derived from genetically
modified plants.104 However, the concept of substantial equivalence as the starting point of risk
assessment was criticized for being "unscientific and arbitrary" and "intentionally vague and ill-
defined to be as flexible, malleable, and open to interpretation as possible." It is likewise argued
that "comparisons are designed to conceal significant changes resulting from genetic modifications,"
"the principle is weak and misleading even when it does not apply, effectively giving producers carte
blanche", and that there is insufficiency of background information for assessing substantial
equivalence. A paper presented at a WHO workshop pointed out that the main difficulty associated
with the biosafety assessment of transgenic crops is the unpredictable nature of transformation.
This unpredictability raises the concern that transgenic plants will behave in an inconsistent manner
when grown commercially.105

The method of testing GM foods was further described as inadequate, as currently the testing
procedures consist almost exclusively of specific chemical and biochemical analytical procedures
designed to quantitate a specific nutrient or a specific toxin or allergen. It was noted that in actual
practice, the investigator compares only selected characteristics of the genetically engineered food
to those of its non-genetically engineered counterpart. These testing schemes are viewed as
completely incapable of detecting unsuspected or unanticipated health risks that are generated by
the process of genetic engineering itself. Hence, clinical tests are recommended because only such
tests have the broad specificity and relevance to human physiology needed to detect the wide range
of allergens and toxins that might result from unexpected side-effects of the genetic engineering
process.106

In another review article, it was pointed out that since a genetic modification is aimed at introducing
new traits into organisms, the result will always be a different composition of genes and proteins.
The most reasonable interpretation therefore is that a food derived from a GMO is considered
substantially equivalent to its traditional counterpart if the genetic modification has not resulted in
intended or unintended alterations in the composition of relevant nutrients and inherent toxicants of
the organism, and that the new genes and proteins have no adverse impact on the dietary value of
the food and do not therefore pose any harm to the consumer or the environment. It was thus
concluded that establishing substantial equivalence is not a safety assessment in itself, but is a
pragmatic tool to analyze the safety of a new food, and hence in the testing of new foods, the latest
scientific methods have to be used. All conceivable efforts to protect consumers from health risks
should thus be made, and at the same time, consumers should be adequately informed about the
real extent of risks and hazards.107

The GMO global debate has so intensified that each side has accused the other camp of mounting
"paid advocacy" and criticizing studies adverse to their respective positions as flawed or unscientific.
Both the agri-business industry, and groups opposed to GMOs including the organic farming
industry, had utilized enormous resources and funds for lobbying and media campaigns locally and
internationally.

What appears to be highlighted in the promotion of GM crop production is the marked reduction in
the use of harmful chemical pesticides.108 The resulting increase in crop yields grown on relatively
small parcels of land is also regarded as a solution to the problem of feeding a fast growing world
population. Proponents of GM biotechnology insist that GM foods are safe to humans and the
environment based on scientific studies. On the other hand, anti-GM activists disseminate adverse
results of recent studies confirming the health and environmental hazards of genetically engineered
crop farming. Also, some countries have maintained a firm stance against genetically engineered
crops or GM foods, such as France and Austria. Over the years, however, accumulated evidence of
the dangers of GMOs, as well as unrealized socio-economic benefits, has been increasingly
recognized by the scientific community.

That GE farming increases crop yield has been debunked by new studies proving the contrary. In
the article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible Technology
cited reports from actual field studies in different countries revealing downward figures for Bt crops,
as summarized below:
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.

• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade -
with the disruptive effect of the GM transformation process accounting for approximately half the
drop in yield.

• Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the
International Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that
GM crop yields were "highly variable" and in some cases, "yields declined".

• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed
studies conducted by academic scientists using adequate controls, concluded that genetically
engineered herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields while
insect-resistant corn has only marginally improved yields. Traditional breeding outperforms genetic
engineering hands down.

• In developing countries, crop failure can have severe consequences as illustrated in India, where a
large number of cotton farmers, unable to pay back high interest loans, have committed suicide.
Several investigations have implicated the unreliable performance of Bt cotton as a major
contributor.

• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest
problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500
by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while those remaining had
to be subsidized by the government. Similarly in the US, Bt cotton yields are not necessarily
consistent or more profitable.109ChanRobles Vi rtu alawlib ra ry

GM technology is thus seen as a failure in terms of addressing food security; rather, it supports
corporate control and impedes common persons' access to adequate food. The root cause of hunger
is not a lack of food, GM critics say, but a lack of access to food. The poor lack money to buy food
and lack of land on which to grow it. It is essential to follow sustainable traditional farming practices
that keeps food production in the hands of small-scale farmers, thereby reducing corporate
control.110

As regards the existing uncertainties of potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term Effects)
study of 2009,111 made for the European Commission, analyzed more than 700 scientific
publications from all over the world about GMOs and their potential effects on environment including
biodiversity, and received contributions to online surveys from 100 to 167 invited environmental
experts. This study declared the following uncertainties:
• increased fitness of GM plants;
• outbreeding depression after hybridization with wild relatives;

• outcrossing between related species and the fate of a transferred GM trait;

• altered flower phenology;

• altered fecundity, increasing seed (gene) flow;

• increased frequency of horizontal gene flow;

• resistance development of pests;

• effects on non-target organisms;

• effects on non-target organisms due to altered nutritional composition of the GM plant;

• effects on non-target organisms due to accumulation of toxic compounds;

• effects on rhizo sphere microbiota;

• effects on symbiotic non-target organisms;

• changes in soil functions caused by GM traits;

• effects on biological control;

• altered use of agrochemicals;

• indirect changes in susceptibility of crops against pathogens;

• adverse effects on agro-biodiversity;

• indirect effects in fertilizer use;

• potential changes in landscape structure;

• increased production of greenhouse gases;

• increased mineral nutrient erosion and fertilizer leaching;

• altered chemical attributes of soil fraction;

• emerging of stacked events;

• the necessity of regional differentiation of risk assessments.112 ChanRobles Virtualawl ibra ry

A critical observation was made on the argument that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed to
clarify potential adverse effects on health or the environment are nearly absent in peer-reviewed
journals. Scientific uncertainty, omitted research areas, and lack of basic knowledge crucial to risk
assessments have become apparent. The present uncertainty warrants further research and it has
been demonstrated that there is a risk of bias relying on hypotheses that dominate mainstream
science. There is therefore a need for independent research that is without prejudice and unbiased
by economic and professional interests.113 In another article it was noted that the clinical trials
carried out to ensure that negative externalities do not affect humans and the environment are
conducted by the same private firms that created the products, raising conflict of interest
concerns.114

While existing literature on health effects of GM foods indicates that they are generally safe, and
similar conclusions have been drawn by government agencies and scientific organizations such as
FAO/WHO and Society of Toxicology, a growing number of independent scientists have spoken
strongly against such generalizations from limited research mostly sponsored by biotech companies.
In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82
countries expressed that they are extremely concerned about the hazards of GMOs to biodiversity,
food safety, human and animal health, and demanded a moratorium on environmental releases in
accordance with the precautionary principle. They are opposed to GM crops that will intensify
corporate monopoly, exacerbate inequality and prevent the essential shift to sustainable agriculture
that can provide food security and health around the world, and called a ban on patents of life forms
and living processes which threaten food security, sanction biopiracy of indigenous knowledge and
genetic resources and violate basic human rights and dignity.115

On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an
Independent Science Panel on GM at a public conference in London. On June 15, 2003, they
released a Final Report116 as their contribution to the National GM Debate in UK. In a summary117 of
the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence
in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the
transgenic process or the transgenic construct, and may hence be general to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target
insects, and some are potent immunogens and allergens for humans and other mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines
known to suppress the immune system, or linked to dementia, neurotoxicity and mood and
cognitive side effects; vaccines and viral sequences such as the 'spike' protein gene of the pig
coronavirus, in the same family as the SARS virus linked to the current epidemic; and glycoprotein
gene gpl20 of the AIDS virus that could interfere with the immune system and recombine with
viruses and bacteria to generate new and unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the
spread of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently
account for 75% of all GM crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological

toxicities, and birth defects in humans and mammals; also toxic to butterflies and a number of
beneficial insects, to larvae of clams and oysters, Daphniaand some freshwater fish, especially the
rainbow trout; it inhibits beneficial soil bacteria and fungi, especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to
many body functions have been reported after exposures at normal use levels; glyphosate exposure
nearly doubled the risk of late spontaneous abortion, and children born to users of glyphosate had
elevated neurobehavioral defects; glyphosate retards development of the foetal skeleton in
laboratory rats, inhibits the synthesis of steroids, and is genotoxic in mammals, fish and frogs; field
dose exposure of earthworms caused at least 50 percent mortality and significant intestinal damage
among surviving worms; Roundup (Monsanto's formulation of glyphosate) caused cell division
dysfunction that may be linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances
the scope and probability of horizontal gene transfer and recombination, the main route to creating
viruses and bacteria that cause disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the
laboratory millions of recombinant viruses that have never existed in billions of years of evolution

o Disease-causing viruses and bacteria and their genetic material are the predominant materials
and tools of genetic engineering, as much as for the intentional creation of bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of
human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian
cells, raising the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals but also
for human beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially
unstable and prone to horizontal gene transfer and recombination, with all the attendant hazards:
gene mutations due to random insertion, cancer, re-activation of dormant viruses and generation of
new viruses.

13. A history of misrepresentation and suppression of scientific evidence

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

In 2008, a Global Report119 was released by the International Assessment of Agricultural

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

More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM foods and
crops.121 The statement122is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal,
social and safety assessment aspects of genetically modified organisms (GMOs), we strongly reject
claims by GM seed developers and some scientists, commentators, and journalists that there is a
"scientific consensus" on GMO safety and that the debate on this topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO safety does not
exist. The claim that it does exist is misleading and misrepresents the currently available scientific
evidence and the broad diversity of opinion among scientists on this issue. Moreover, the claim
encourages a climate of complacency that could lead to a lack of regulatory and scientific rigour and
appropriate caution, potentially endangering the health of humans, animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current knowledge
is always open to well-founded challenge and disagreement. We endorse the need for further
independent scientific inquiry and informed public discussion on GM product safety and urge GM
proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive review
of animal feeding studies of GM crops found "An equilibrium in the number [of] research groups
suggesting, on the basis of their studies, that a number of varieties of GM products (mainly maize
and soybeans) are as safe and nutritious as the respective conventional non-GM plant, and those
raising still serious concerns". The review also found that most studies concluding that GM foods
were as safe and nutritious as those obtained by conventional breeding were "performed by
biotechnology companies or associates, which are also responsible [for] commercializing these GM
plants".

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

Rigorous studies investigating the safety of GM crops and foods would normally involve animal
feeding studies in which one group of animals is fed GM food and another group is fed an equivalent
non-GM diet. Independent studies of this type are rare, but when such studies have been
performed, some have revealed toxic effects or signs of toxicity in the GM-fed animals. The
concerns raised by these studies have not been followed up by targeted research that could confirm
or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent
research calls of the European Union and the French government to investigate the long-term health
impacts of GM food consumption in the light of uncertainties raised by animal feeding studies. These
official calls imply recognition of the inadequacy of the relevant existing scientific research
protocols. They call into question the claim that existing research can be deemed conclusive and the
scientific debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM food

consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to establish
whether there are any health effects associated with GM food consumption. As GM foods are not
labelled in North America, a major producer and consumer of GM crops, it is scientifically impossible
to trace, let alone study, patterns of consumption and their impacts. Therefore, claims that GM
foods are safe for human health based on the experience of North American populations have no
scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or
inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods are safe,
or that they are no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical
of the regulatory system for GM foods and crops in that country. The report declared that it is
"scientifically unjustifiable" to presume that GM foods are safe without rigorous scientific testing and
that the "default prediction" for every GM food should be that the introduction of a new gene will
cause "unanticipated changes" in the expression of other genes, the pattern of proteins produced,
and/or metabolic activities. Possible outcomes of these changes identified in the report included the
presence of new or unexpected allergens.

A report by the British Medical Association concluded that with regard to the long-term effects of GM
foods on human health and the environment, "many unanswered questions remain" and that "safety
concerns cannot, as yet, be dismissed completely on the basis of information currently available".
The report called for more research, especially on potential impacts on human health and the
environment.

Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology. For
example, a statement by the American Medical Association's Council on Science and Public Health
acknowledged "a small potential for adverse events ... due mainly to horizontal gene transfer,
allergenicity, and toxicity" and recommended that the current voluntary notification procedure
practised in the US prior to market release of GM crops be made mandatory. It should be noted that
even a "small potential for adverse events" may turn out to be significant, given the widespread
exposure of human and animal populations to GM crops.

A statement by the board of directors of the American Association for the Advancement of Science
(AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to represent the
view of AAAS members as a whole and was challenged in an open letter by a group of 21 scientists,
including many long-standing members of the AAAS. This episode underlined the lack of consensus
among scientists about GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and food
safety. However, the report based on this project, "A Decade of EU-Funded GMO Research",
presents no data that could provide such evidence, from long-term feeding studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the
development of safety assessment approaches". Only five published animal feeding studies are
referenced in the SAFOTEST section of the report, which is dedicated to GM food safety. None of
these studies tested a commercialised GM food; none tested the GM food for long-term effects
beyond the subchronic period of 90 days; all found differences in the GM-fed animals, which in
some cases were statistically significant; and none concluded on the safety of the GM food tested,
let alone on the safety of GM foods in general. Therefore the EU research project provides no
evidence for sweeping claims about the safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies "document
the general safety and nutritional wholesomeness of GM foods and feeds" is misleading.
Examination of the studies listed reveals that many do not provide evidence of GM food safety and,
in fact, some provide evidence of a lack of safety. For example:chanRob lesvi rtua lLawl ibra ry

• Many of the studies are not toxicological animal feeding studies of the type that can provide useful
information about health effects of GM food consumption. The list includes animal production
studies that examine parameters of interest to the food and agriculture industry, such as milk yield
and weight gain; studies on environmental effects of GM crops; and analytical studies of the
composition or genetic makeup of the crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial number
found toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns raised
by these studies have not been satisfactorily addressed and the claim that the body of research
shows a consensus over the safety of GM crops and foods is false and irresponsible.

• Many of the studies were conducted over short periods compared with the animal's total lifespan
and cannot detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website as
they do not "document the general safety and nutritional wholesomeness of GM foods and feeds".
Rather, some of the studies give serious cause for concern and should be followed up by more
detailed investigations over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target
organisms and effects of the herbicides used in tandem with herbicide-tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of GM
crops. A review of environmental risk assessment approaches for GM crops identified shortcomings
in the procedures used and found "no consensus" globally on the methodologies that should be
applied, let alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse effects on
non-target and beneficial organisms - effects that are widely neglected in regulatory assessments
and by some scientific commentators. Resistance to Bt toxins has emerged in target pests, and
problems with secondary (non-target) pests have been noted, for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies
have associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds,
and adverse health effects in human and animal populations exposed to Roundup, the herbicide
used on the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM crops may
be correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists on the
environmental risks of GM crops found that funding and disciplinary training had a significant effect
on attitudes. Scientists with industry funding and/or those trained in molecular biology were very
likely to have a positive attitude to GM crops and to hold that they do not represent any unique
risks, while publicly-funded scientists working independently of GM crop developer companies
and/or those trained in ecology were more likely to hold a "moderately negative" attitude to GM
crop safety and to emphasize the uncertainty and ignorance involved. The review authors
concluded, "The strong effects of training and funding might justify certain institutional changes
concerning how we organize science and how we make public decisions when new technologies are
to be evaluated."

7. International agreements show widespread recognition of risks posed by GM foods and

crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003.
The Cartagena Protocol is an international agreement ratified by 166 governments worldwide that
seeks to protect biological diversity from the risks posed by GM technology. It embodies the
Precautionary Principle in that it allows signatory states to take precautionary measures to protect
themselves against threats of damage from GM crops and foods, even in case of a lack of scientific
certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven
years to develop international guidelines for the assessment of GM foods and crops, because of
concerns about the risks they pose. These guidelines were adopted by the Codex Alimentarius
Commission, of which over 160 nations are members, including major GM crop producers such as
the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that
they agree that genetic engineering differs from conventional breeding and that safety assessments
should be required before GM organisms are used in food or released into the environment.

These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be happening,
without widespread international recognition of the risks posed by GM crops and foods and the
unresolved state of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and
foods that have shown adverse effects on animal health and non-target organisms, indicated above.
Many of these studies have, in fact, fed into the negotiation and/or implementation processes of the
Cartagena Protocol and Codex. We support the application of the Precautionary Principle with regard
to the release and transboundary movement of GM crops and foods.

Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the totality of
scientific research outcomes in the field of GM crop safety is nuanced, complex, often contradictory
or inconclusive, confounded by researchers' choices, assumptions, and funding sources, and in
general, has raised more questions than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human food and
animal feed supply, and whether the identified risks are acceptable or not, are decisions that involve
socioeconomic considerations beyond the scope of a narrow scientific debate and the currently
unresolved biosafety research agendas. These decisions must therefore involve the broader society.
They should, however, be supported by strong scientific evidence on the long-term safety of GM
crops and foods for human and animal health and the environment, obtained in a manner that is
honest, ethical, rigorous, independent, transparent, and sufficiently diversified to compensate for
bias.

Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO safety.123 ChanRoblesVirt ualawli bra ry

One of the most serious concerns raised against GM crops is that expressed by one of our political
analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future Council
put it, "While profitable to the few companies producing them, GMO seeds reinforce a model of
farming that undermines sustainability of cash-poor farmers, who make up most of the world's
hungry. GMO seeds continue farmers' dependency on purchased seed and chemical inputs. The
most dramatic impact of such dependency is in India, where 270,000 farmers, many trapped in debt
for buying seeds and chemicals, committed suicide between 1995 and 2012."124 ChanRoblesVi rt ualawlib ra ry

In sum, current scientific research indicates that the biotech industry has not sufficiently addressed
the uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important
ingredient in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver
problems. The attempted commercial propagation of Bt brinjal spawned intense debate and suffered
obstacles due to sustained opposition from local scientists, academicians and non-government
organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of
eggplant's diversity, said that if the new technology is adopted, decrease in the use of insecticides,
substantial increase in crop yields and greater food availability, can be expected. But opponents
argued, alongside food safety concerns, that there is a potential for toxic effects on populations of
non-target invertebrates, and potential replacement of traditional landraces as farmers may move
towards cultivation of a restricted number of GE forms. In addition to these issues, there was the
additional concern raised over the transfer of Bt transgenes to non-GE brinjal or its wild relatives,
and the consequences for plant biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a
Technical Evaluation Committee (TEC) composed of experts nominated by the parties to undertake
a comprehensive evaluation of the feasibility of allowing the open field trials of Bt brinjal and submit
a final report, and in the event the TEC is unable to submit said final report, it was directed instead
to submit an interim report within the period set by the Court on the following issue: Whether there
should or should not be any ban, partial or otherwise, upon conducting of open field tests of the
GMOs? In the event open field trials are permitted, what protocol should be followed and conditions,
if any, that may be imposed by the Court for implementation of open field trials." The Court also
directed that the TEC would be free to review report or studies authored by national and
international scientists if it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all
field trials should be stopped until certain conditions have been met. A Final Report126 was
eventually submitted to the Court which noted weaknesses in the conditions imposed by the
regulatory agencies for conduct of field trials, as follows: 1) post-release monitoring, an important
aspect of environmental and health safety (if the GE crop is consumed as food) is not given
adequate attention; 2) the importance of need and socio-economic impact assessment of GM
products as one of the criteria that should be applied in the evaluation at an early stage; and 3)
need for additional tests not currently done such as long-term feeding studies for assessment of
chronic and intergeneration toxicity in small animals, genomewide expression analysis in the toxicity
studies to screen for possible unintended effects on host physiology. It was recommended that a
moratorium on field trials of herbicide tolerant crops until the issue had been examined by an
independent committee, and also noted that said technology may not be suitable in the Indian
socio-economic context due to possible impact of extensive use of broad spectrum herbicides on the
environmental biodiversity and smaller average farm size. Examination of the safety dossier of Bt
brinjal indicated certain concerns on the data, which had not been addressed in the course of
regulatory testing leading to approval due to lack of full-time qualified personnel for the purpose.
Overall, it was found that the quality of information in several of the applications is far below what
would be expected and required for rigorous evaluation by a regulatory body and is unlikely to meet
international regulatory guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain
conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally
believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack the receptor for
Cry toxins, two studies (one in mice and the other in cows) have provided evidence that Cry
proteins can bind to mammalian intestinal epithelial cells. The report also discussed the emergence
of resistance in insect pests, health and food safety of Bt transgenics, and herbicide tolerant crops
and their effect on biodiversity and the environment. Specific recommendations were made to
address the foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be extraordinarily
compelling reasons and only when other choices are not available. GM crops that offer incremental
advantages or solutions to specific and limited problems are not sufficient reasons to justify such
release. The TEC did not find any such compelling reasons under the present conditions. The fact is
that unlike the situation in 1960s there is no desperate shortage of food and in fact India is in a
reasonably secure position. The TEC therefore recommends that release of GM crops for which India
is a centre of origin or diversity should not be allowed.127ChanRobles Vi rtua lawlib rary

In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former

environment minister Jairam Ramesh placed an indefinite moratorium on its further field testing.
This was done after discussions with scientists, both pro and anti-GM crops, activists and farmers
across the country.

GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed
primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and
FPA all maintain there was no unlawful deviation from its provisions and that respondents so far
failed to present evidence to prove their claim that Bt talong field trials violated environmental laws
and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory
body, was tasked to "evaluate the potential risks of the proposed activity to human health and the
environment based on available scientific and technical information." Under DA Special Order 241
and 384 (2002) the STRP membership was expanded to include "an independent pool of
experts...tapped by the [BPI] to evaluate the potential risks of the proposed release of GMOs for
field testing, propagation, food, feed to human health and the environment based on available
scientific and technical information."

DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test are
received and processed by DA-BPI, but the approval process for projects on contained use remains
under the supervision of NCBP. A mandatory risk assessment of GM plant and plant products is
required prior to importation or release into the environment. Experiments must first be conducted
under contained conditions, then the products are tested in field trials the product is reviewed for
commercial release. Risk assessment is done according to the principles provided for by the
Cartagena Protocol on Biosafety. Risk assessment is science-based, carried out on a case by case
manner, targets a specific crop and its transformation event, adopts the concept of substantial
equivalence in identifying risk, allows review, and provides that the absence of scientific information
or consensus should not be interpreted to indicate the absence or presence and level of risk.128

Greenpeace, however, claims there is actually only a committee of three to five members which
conducts the risk assessment, and is aided by an informal group, the DA's Biotech Advisory Team
(BAT), of representatives from government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH
and DOST. It also assails the government regulatory agencies for their refusal to open to scrutiny
the names and qualifications of those incharge of regulation and risk assessment, and for allowing
the entry and use of all GMO applications requested by multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for
regulating field trials of GM plants and plant products. EO 514130 establishing the National Biosafety
Framework (NBF) clearly provides that the NBF shall apply to the development, adoption and
implementation of all biosafety policies, measures and guidelines and in making biosafety
decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles.131 The objective of
the NBF is to "[e]nhance the decision-making system on the application of products of modern
biotechnology to make it more efficient, predictable, effective, balanced, culturally appropriate,
ethical, transparent and participatory".132 Thus, "the socio-economic, ethical, and cultural benefit
and risks of modern biotechnology to the Philippines and its citizens, and in particular on small
farmers, indigenous peoples, women, small and medium enterprises and the domestic scientific
community, shall be taken into account in implementing the NBF."133 The NBF also mandates that
decisions shall be arrived at in a transparent and participatory manner, recognizing that biosafety
issues are best handled with the participation of all relevant stakeholders and organizations who
shall have appropriate access to information and the opportunity to participate responsibly and in an
accountable manner in biosafety decision-making process.134

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the
relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and
11 (par. 8), the precautionary approach shall guide biosafety decisions. The principles and elements
of this approach are hereby implemented through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are
expected to follow and which their respective rules and regulations must conform with. In cases of
conflict in applying the principles, the principle of protecting public interest and welfare shall always
prevail, and no provision of the NBF shall be construed as to limit the legal authority and mandate
of heads of departments and agencies to consider the national interest and public welfare in making
biosafety decisions.135

As to the conduct of risk assessment to identify and evaluate the risks to human health and the
environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing
a RA to determine whether a regulated article poses significant risks to human health and the
environment: chanRob lesvi rtua lLawl ibra ry

5.2.1.1 The RA shall be carried out in a scientifically sound and transparent

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

5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be

interpreted as indicating a particular level of risk, an absence of risk, or an
acceptable risk;
5.2.1.3 The identified characteristics of a regulated article and its use which have
the potential to pose significant risks to human health and the
environment shall be compared to those presented by the non-modified
organism from which it is derived and its use under the same conditions;

5.2.1.4 The RA shall be carried out case-by-case and on the basis of

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

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

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies
shall be in accordance with the policies and standards on RA issued by the NCBP. Annex III of the
Cartagena Protocol shall also guide RA. As appropriate, such department and agencies may issue
their own respective administrative issuances establishing the appropriate RA under their particular
jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the
requirements of law and the standards set by the NCBP. Where applicable and under the
coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on the
matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national biosafety
regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably,
Section 7 of the NBF mandates a more transparent, meaningful and participatory public consultation
on the conduct of field trials beyond the posting and publication of notices and information sheets,
consultations with some residents and government officials, and submission of written comments,
provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate, and
conduct public awareness, education, meaningful, responsible and accountable participation. They
shall incorporate into their respective administrative issuances and processes best practices and
mechanisms on public participation in accordance with the following guidelines: cha nRoblesvi rt ualLawlib rary

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

7.2 Minimum Requirements of Public Participation. - In conducting public participation

processes, the following minimum requirements shall be followed: c hanRoble svirtual Lawli bra ry
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to
which they have access. Such notice must be adequate, timely, and effective and posted
prominently in public places in the areas affected, and in the case of commercial releases, in the
national print media; in all cases, such notices must be posted electronically in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures
should allow relevant stakeholders to understand and analyze the benefits and risks, consult with
independent experts, and make timely interventions. Concerned departments and agencies shall
include in their appropriate rules and regulations specific time frames for their respective public
participation processes, including setting a minimum time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made.
These could include formal hearings in certain cases, or solicitation of public comments, particularly
where there is public controversy about the proposed activities. Public consultations shall encourage
exchanges of information between applicants and the public before the application is acted upon.
Dialogue and consensus-building among all stakeholders shall be encouraged. Concerned
departments and agencies shall specify in their appropriate rules and regulations the stages when
public consultations are appropriate, the specific time frames for such consultations, and the
circumstances when formal hearings will be required, including guidelines to ensure orderly
proceedings. The networks of agricultural and fisheries councils, indigenous peoples and
community-based organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow
public participation in writing or through public hearings, as appropriate, and which allow
the submission of any positions, comments, information, analyses or opinions. Concerned
departments and agencies shall include in their appropriate rules and regulations the stages when
and the process to be followed for submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and
submission of written comments. Public concerns as reflected through the procedures for public
participation shall be considered in making the decision. The public shall be informed of the final
decision promptly, have access to the decision, and shall be provided with the reasons and
considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real
effort was made to operationalize the principles of the NBF in the conduct of field testing of Bt
talong. The failure of DAO 08-2002 to accommodate the NBF means that the Department of
Agriculture lacks mechanisms to mandate applicants to comply with international biosafety
protocols. Greenpeace's claim that BPI had approved nearly all of the applications for GMO field
trials is confirmed by the data posted on their website. For these reasons, the DAO 08-2002 should
be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the
EIS law, EO 514 clearly mandates that concerned departments and agencies, most particularly
petitioners DENR-EMB, BPI and FPA, make a determination whether the EIS system should apply to
the release of GMOs into the environment and issue joint guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect
impacts of a project on the biophysical and human environment and ensuring that these impacts
are addressed by appropriate environmental protection and enhancement measures. It "aids
proponents in incorporating environmental considerations in planning their projects as well as in
determining the environment's impact on their project." There are six stages in the regular EIA
process. The proponent initiates the first three stages while the EMB takes the lead in the last three
stages. Public participation is enlisted in most stages.136

Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA
under existing regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups,
e.g. projects using new processes/technologies with uncertain impacts. This is an interim
category - unclassified projects will eventually be classified into their appropriate groups after EMB
evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to undertake
activities or projects which will affect the quality of the environment are required to prepare a
detailed Environmental Impact Statement (EIS) prior to undertaking such development
activity.138 An environmentally critical project (ECP) is considered by the EMB as "likely to have
significant adverse impact that may be sensitive, irreversible and diverse" and which "include
activities that have significant environmental consequences."139 In this context, and given the
overwhelming scientific attention worldwide on the potential hazards of GMOs to human health and
the environment, their release into the environment through field testing would definitely fall under
the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on
whether his office undertook the necessary evaluation on the possible environmental impact of Bt
talong field trials subject of this case and the release of GMOs into the environment in general.
While he initially cited lack of budget and competence as reasons for their inaction, he later said
that an amendment of the law should be made since projects involving GMOs are not covered by
Proclamation No. 2146140. Pertinent portions of his testimony before the CA are herein quoted:
xxxx

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law.
Granting Mr. Witness that a certain project or undertaking is not classified as environmentally
critical project, how would you know that the BT talong field testing is not located in an
environmentally critical area this time?

ATTY. ACANTILADO: chanRoblesvirtual Lawli bra ry

Objection Your Honor, argumentative.

HON. J. DICDICAN: chanRoblesvirt ual Lawlib rary

Witness may answer.

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the
Petition, petitioners never alleged that the project, the subject matter rather of this instant petition,
is within an environmentally critical project.

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

Your Honor the Witness did not answer the question.

HON. J. DICDICAN: chanRoblesvirt ual Lawlib rary

Please answer the question.

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Personally I have conferred with our personnel from the Environmental Impact Assessment Division
and they intimated to me that the locations of the project, rather of this subject matter of the
instant petition, not within any declared environmentally critical area.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

In other words, you are aware of the area where the BT Talong experiments are being conducted. Is
that the premise?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I
said personnel from Environmental Impact Division at our office, as I said they intimated to me that
it's not within declared environmentally critical area.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

That being the case, you did not act further? [You] did not make any further evaluation, on
whether the activity has an environmental impact? Is that the correct premise?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal
aspects of the Bureau's affairs. But when it comes to highly technical matters, I have to rely on our
technical people especially on environmentally impact assessment matters.

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness
coordinate with your Office with regard the field testing of BT Talong?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with
regard the field testing of BT Talong as required under the law?

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

Already answered your Honor, objection.

HON. J. DICDICAN: chanRoblesvirt ual Lawlib rary

The witness in effect said he does not know, he's not in a position to answer.

xxxx

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO: chanRoblesvirtual Lawli bra ry

Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet
received any project with respect to that Your Honor. So the witness would not be in a position to
answer that Your Honors.

HON. J. DICDICAN: chanRoblesvirt ual Lawlib rary

Lay the basis first.

ATTY. SORIANO: chanRoblesvi rtua lLawl ib rary

The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up
question is specifically Your Honor the BT talong field testing.

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

Unclassified?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

As the section will initially provide. But there must be prior ... may I continue to harp on that Your
Honors. There must be prior ... let's say conditions ... there must be prior evaluation and
assessment just the same by the EMB.

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

Prior to what Mr. Witness?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

Yes please.

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent
evaluation or assessment of the matter to see if we also have the resources and expertise if it can
be finally unclassified. I should say should fall within the fairview of the system, the EIA system. In
other words, it's in a sort of how do you say that it's in a state of limbo. So it's unclassified, that's
the most we can do in the meantime.

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the
projects such as this one in particular?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Yes, Your Honors as of now.

HON. J. VALENZUELA: chanRoblesvirt ual Lawlib rary

So therefore, when you say initially it's unclassified and then you're saying afterwards
the EMB needs evaluation but then you're saying the EMB is without any capability to
evaluate then what happens?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's
how we interpret it. But the truth of the matter is with all pragmatism we don't have the
resources as of now and expertise to do just that.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

So in other words you admit that the EMB is without any competence to make a
categorical or initial examination of this uncategorized activity, is that what you mean?
ATTY. SEGUI: chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of
the parties concerned.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

So that means you are waiting for a request? Are you not? Proactive in this activity in performing
your obligations and duties?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for
the environment is hardly ... the ratio is ... if we want to protect indeed the environment
as we profess, with all due respect if Congress speaks otherwise.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial
Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters related to
environmental management, conservation and pollution control, right?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Yes.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental
Critical Areas of Projects and more specifically focused on Proclamation No. 2146. With respect to
this BT Talong, you mentioned that this is at first is uncategorized, it's not within?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

But you did mention that under the rules and regulations, even in an uncategorized activity,
pertaining to the environment, your Office has the mandate and then you later say that your Office
is without competence, do I follow your line of standing?

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now
within Proclamation 2146.

HON. J. BARRIOS: chanRoblesvi rtual Lawli bra ry

Yes, but under the implementing rules your Office has the mandate to act on other unclassified
activities and you answered that your Office has no competence.

ATTY. SEGUI: chanRoblesvirtual Lawlib rary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the
Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack
of serious attention to their mandate under the law in the implementation of the NBF, as provided in
the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary
government agency responsible for the conservation, management, development and proper use of
the country's environment and natural resources, the Department of Environment and Natural
Resources (DENR) shall ensure that environmental assessments are done and impacts
identified in biosafety decisions. It shall also take the lead in evaluating and monitoring
regulated articles intended for bioremediation, the improvement of forest genetic resources, and
wildlife genetic resources.

xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The
competent national authorities, responsible for performing the administrative functions required by
the Protocol, shall be, depending on the particular genetically modified organisms in question, the
following:chanRob lesvi rtual Lawl ibra ry

xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered
by the Protocol that concernregulated organisms intended for bioremediation, the improvement
of forest genetic resources, and wildlife genetic resources, and applications of modern
biotechnology with potential impact on the conservation and sustainable use of
biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned
agencies to ensure that there will be funding for the implementation of the NBF as it was intended
to be a multi-disciplinary effort involving the different government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets
to implement the NBF, including support to the operations of the NCBP and its Secretariat. Starting
2006 and thereafter, the funding requirements shall be included in the General Appropriations Bill
submitted by each of said departments to Congress.

These concerned departments shall enter into agreement on the sharing of financial and technical
resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation
of the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to "foresee and forestall" harm to the environment. In the following
decades, the precautionary principle has served as the normative guideline for policymaking by
many national governments.142 The Rio Declaration on Environment and Development, the outcome
of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro,
defines the rights of the people to be involved in the development of their economies, and the
responsibilities of human beings to safeguard the common environment. It states that the long term
economic progress is only ensured if it is linked with the protection of the environment.143 For the
first time, the precautionary approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which indicates
that lack of scientific certainty is no reason to postpone action to avoid potentially serious or
irreversible harm to the environment. It has been incorporated in various international legal
instruments.144The Cartagena Protocol on Biosafety to the Convention on Biological Diversity,
finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily
aimed at regulating trade in GMOs intended for release into the environment, in accordance with
Principle 15 of the Rio Declaration on Environment and Development. The Protocol thus provides:
Article

10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as appropriate,
with regard to the import of the living modified organism in question as referred to in paragraph 3
above, in order to avoid or minimize such potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as appropriate,
with regard to the import of that living modified organism intended for direct use as food or feed, or
for processing, in order to avoid or minimize such potential adverse effects.

xxxx

Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as

indicating a particular level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met145:

 there exist considerable scientific uncertainties;

 there exist scenarios (or models) of possible harm that are scientifically reasonable (that is
based on some scientifically plausible reasoning);

 uncertainties cannot be reduced in the short term without at the same time increasing
ignorance of other relevant factors by higher levels of abstraction and idealization;
  the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;

 there is a need to act now, since effective counteraction later will be made significantly
more difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary principle
in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit
of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following factors,
among others, may be considered: (1) threats to human life or health; (2) inequity to present or
future generations; or (3) prejudice to the environment without legal consideration of the
environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in
cases before the courts. The precautionary principle bridges the gap in cases where scientific
certainty in factual findings cannot be achieved. By applying the precautionary principle, the court
may construe a set of facts as warranting either judicial action or inaction, with the goal of
preserving and protecting the environment. This may be further evinced from the second paragraph
where bias is created in favor of the constitutional right of the people to a balanced and healthful
ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from
those likely to suffer harm and onto those desiring to change the status quo. An application of the
precautionary principle to the rules on evidence will enable courts to tackle future environmental
problems before ironclad scientific consensus emerges.146

For purposes of evidence, the precautionary principle should be treated as a principle of last resort,
where application of the regular Rules of Evidence would cause in an inequitable result for the
environmental plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result
would be serious. When these features

— uncertainty, the possibility of irreversible harm, and the possibility of serious harm —
coincide, the case for the precautionary principle is strongest. When in doubt, cases must be
resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically,
judicial adjudication is one of the strongest fora in which the precautionary principle may find
applicability.147

Assessing the evidence on record, as well as the current state of GMO research worldwide, the
Court finds all the three conditions present in this case - uncertainty, the possibility of irreversible
harm and the possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority
of whom are poor and marginalized. While the goal of increasing crop yields to raise farm incomes is
laudable, independent scientific studies revealed uncertainties due to unfulfilled economic benefits
from Btcrops and plants, adverse effects on the environment associated with use of GE technology
in agriculture, and serious health hazards from consumption of GM foods. For a biodiversity-rich
country like the Philippines, the natural and unforeseen consequences of contamination and genetic
pollution would be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of
risk assessment and public consultation, including the determination of the applicability of the EIS
requirements to GMO field testing, are compelling reasons for the application of the precautionary
principle. There exists a preponderance of evidence that the release of GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and eventually
the health of our people once the Bt eggplants are consumed as food. Adopting the precautionary
approach, the Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the release into the
environment of genetically modified eggplant. The more prudent course is to immediately enjoin
the Bt talong field trials and approval for its propagation or commercialization until the said
government offices shall have performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the government fixes
regulatory and safety aspects - as relevant because majority of Filipino farmers are also small-scale
farmers. Further, the precautionary approach entailed inputs from all stakeholders, including the
marginalized farmers, not just the scientific community. This proceeds from the realization that
acceptance of uncertainty is not only a scientific issue, but is related to public policy and involves an
ethical dimension.148 For scientific research alone will not resolve all the problems, but participation
of different stakeholders from scientists to industry, NGOs, farmers and the public will provide a
needed variety of perspective foci, and knowledge.149

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for
biosafety arising from the use of modern biotechnology, which is deemed necessary to provide more
permanent rules, institutions, and funding to adequately deal with this challenge,150 the matter is
within the exclusive prerogative of the legislative branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals
in CA-G.R. SP No. 00013 is hereby MODIFIED, as follows: chanRoble svirtual Lawlib ra ry

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

2. Department of Agriculture Administrative Or

der No. 08, series of 2002 is declared NULL AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms is TEMPORARILY
ENJOINED until a new administrative order is promulgated in accordance with law.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF
BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER
ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M.
DRILON m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES
represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE
HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial

Board Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH
ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the
subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings
before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage
may be traced to the degrading ritual of rolling out a barrel stuffed with pork to a
multitude of black slaves who would cast their famished bodies into the porcine feast
to assuage their hunger with morsels coming from the generosity of their well-fed
master.4 This practice was later compared to the actions of American legislators in
trying to direct federal budgets in favor of their districts.5 While the advent of
refrigeration has made the actual pork barrel obsolete, it persists in reference to
political bills that "bring home the bacon" to a legislator‘s district and constituents.6 In
a more technical sense, "Pork Barrel" refers to an appropriation of government
spending meant for localized projects and secured solely or primarily to bring money
to a representative's district.7Some scholars on the subject further use it to refer to
legislative control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum,

discretionary funds of Members of the Legislature,9 although, as will be later
discussed, its usage would evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 312 provides that the sums
appropriated for certain public works projects13 "shall be distributed x x x subject to
the approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides
that the said secretary, "with the approval of said joint committee, or of the authorized
members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they ‘being the representatives of
the people, either on their own account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President – the Public Works Act.17 In the
1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang Pambansa
had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports,20 it was under the SLDP that the
practice of giving lump-sum allocations to individual legislators began, with each
assemblyman receiving ₱500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblyman‘s locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also "soft projects",21 or non-
public works projects such as those which would fall under the categories of, among
others, education, health and livelihood.22
C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented23 that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion
to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to
the submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported26 that
by 1992, Representatives were receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President.29 As such, Representatives were
allocated ₱12.5 Million each in CDF funds, Senators, ₱18 Million each, and the Vice-
President, ₱20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition,
however, the Department of Budget and Management (DBM) was directed to submit
reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."
 The following year, or in 1998,36 the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list
was no longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministration‘s political agenda.37 It has been articulated that since
CIs "formed part and parcel of the budgets of executive departments, they were not
easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers
themselves as well as the finance and budget officials of the implementing agencies,
as well as the DBM, purportedly knew about the insertions.38 Examples of these CIs
are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Niño Fund, and the Poverty
Alleviation Fund.39 The allocations for the School Building Fund, particularly, ―shall
be made upon prior consultation with the representative of the legislative district
concerned.”40 Similarly, the legislators had the power to direct how, where and when
these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa
Mahihirap Program Fund,"44and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of
the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless, the provisions
in the 2003 budgets of the Department of Public Works and Highways51 (DPWH) and
the DepEd52 required prior consultation with Members of Congress on the aspects of
implementation delegation and project list submission, respectively. In 2004, the
2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and
shall be released directly to the implementing agencies." It also introduced the
program menu concept,55 which is essentially a list of general programs and
 implementing agencies from which a particular PDAF project may be subsequently
chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006 and
hence, operated on the same bases. In similar regard, the program menu concept
was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their participation
in the proposal and identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior
consultation with the concerned Member of Congress61anent certain aspects of
project implementation.

Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate.
For such purpose, the law stated that "the amount of at least ₱250 Million of the
₱500 Million allotted for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68(the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President: Representatives were given ₱70
Million each, broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft
projects"; while ₱200 Million was given to each Senator as well as the Vice-
President, with a ₱100 Million allocation each for "hard" and "soft projects." Likewise,
a provision on realignment of funds was included, but with the qualification that it
may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways to
realign PDAF Funds, with the further conditions that: (a) realignment is within the
same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the concurrence of
the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or
 design prepared by each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator who would choose
and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if
they have the technical capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum,
discretionary funds of Members of Congress, the present cases and the recent
controversies on the matter have, however, shown that the term‘s usage has
expanded to include certain funds of the President such as the Malampaya Funds
and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under
Section 880 of Presidential Decree No. (PD) 910,81 issued by then President Ferdinand
E. Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos recognized
the need to set up a special fund to help intensify, strengthen, and consolidate
government efforts relating to the exploration, exploitation, and development of
indigenous energy resources vital to economic growth.82 Due to the energy-related
activities of the government in the Malampaya natural gas field in Palawan, or the
"Malampaya Deep Water Gas-to-Power Project",83 the special fund created under PD
910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title
IV84 of PD 1869,85 or the Charter of the Philippine Amusement and Gaming
Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended PD 1869 and accordingly issued PD
1993 on October 31, 1985,86 amending Section 1287 of the former law. As it stands,
the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the
President provides direct assistance to priority programs and projects not funded
under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased

tremendously,89 owing in no small part to previous Presidents who reportedly used
the "Pork Barrel" in order to gain congressional support.90 It was in 1996 when the
first controversy surrounding the "Pork Barrel" erupted. Former Marikina City
Representative Romeo Candazo (Candazo), then an anonymous source, "blew the
lid on the huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘
(standard operating procedure) among legislators and ranged from a low 19 percent
to a high 52 percent of the cost of each project, which could be anything from
dredging, rip rapping, sphalting, concreting, and construction of school
buildings."92 "Other sources of kickbacks that Candazo identified were public funds
intended for medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig."93 "The publication of the stories,
including those about congressional initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the

PDAF as enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack
of "any pertinent evidentiary support that illegal misuse of PDAF in the form of
kickbacks has become a common exercise of unscrupulous Members of Congress,"
the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI)
began its probe into allegations that "the government has been defrauded of some
₱10 Billion over the past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of ghost projects."96 The
investigation was spawned by sworn affidavits of six (6) whistle-blowers who
declared that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) –
had swindled billions of pesos from the public coffers for "ghost projects" using no
fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly
the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles‘ private accounts.97 Thus, after its investigation on the
Napoles controversy, criminal complaints were filed before the Office of the
Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers
for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices
Act. Also recommended to be charged in the complaints are some of the lawmakers‘
chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-
year audit investigation99covering the use of legislators' PDAF from 2007 to 2009, or
during the last three (3) years of the Arroyo administration. The purpose of the audit
was to determine the propriety of releases of funds under PDAF and the Various
Infrastructures including Local Projects (VILP)100 by the DBM, the application of these
funds and the implementation of projects by the appropriate implementing agencies
and several government-owned-and-controlled corporations (GOCCs).101 The total
releases covered by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664
Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA
Report), entitled "Priority Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

● Amounts released for projects identified by a considerable number of

legislators significantly exceeded their respective allocations.
 ● Amounts were released for projects outside of legislative districts of
sponsoring members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated
under the 2007 to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these

having been turned over to the government.

● Significant amounts were released to implementing agencies without the

latter‘s endorsement and without considering their mandated functions,
administrative and technical capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the

implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred

seventy two (772) projects amount to ₱6.156 Billion were either found
questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of

goods and services reportedly used in the projects were not compliant with
law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900
Million from royalties in the operation of the Malampaya gas project off Palawan
province intended for agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA
Chairperson), the CoA is, as of this writing, in the process of preparing "one
consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the
"Pork Barrel System" be declared unconstitutional. To recount, the relevant
procedural antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social
Justice Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of
Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of Representatives, from further
taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in
whatever form and by whatever name it may be called, and from approving further releases
pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez,

Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr.
(Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition),
seeking that the annual "Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund,107 be
declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents Paquito N.
Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective
capacities as the incumbent Executive Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents, for them to immediately cease
any expenditure under the aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to
2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the
"inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and
remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a

Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno
Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund priority projects identified and
approved by the Local Development Councils in consultation with the executive departments,
such as the DPWH, the Department of Tourism, the Department of Health, the Department
of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all
cases; (b) requiring public respondents to comment on the consolidated petitions; (c) issuing
a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive
Secretary, or any of the persons acting under their authority from releasing (1) the remaining
PDAF allocated to Members of Congress under the GAA of 2013, and (2) Malampaya Funds
under the phrase "for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource
development and exploitation programs and projects of the government‖ under the same
provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated
Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative,
the partial lifting with respect to educational and medical assistance purposes, of the Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of
merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to
reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment:
(a) on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30,
2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1,
2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be
observed by the parties for the Oral Arguments scheduled on October 8, 2013. In view of the
technicality of the issues material to the present cases, incumbent Solicitor General Francis
H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments
representative/s from the DBM and Congress who would be able to competently and
completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby
requested to appear before the Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court
directed the parties to submit their respective memoranda within a period of seven (7) days,
or until October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the
main issues for the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of
policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the
Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888,
entitled "Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated
April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of
constitutionality of the "Pork Barrel System" under the principles of res judicata and stare
decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks
and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality
or validity of a law or governmental act may be heard and decided by the Court unless there
is compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an
actual case or controversy calling for the exercise of judicial power; (b) the person
challenging the act must have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the earliest opportunity ; and
(d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites,
case law states that the first two are the most important119and, therefore, shall be discussed
forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence."122 Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging
it. It is a prerequisite that something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the challenged action."123 "Withal,
courts will decline to pass upon constitutional issues through advisory opinions, bereft as
they are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable
controversy in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions
of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged funds and the provisions
allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund
– are currently existing and operational; hence, there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose can
be served in passing upon the merits.125 Differing from this description, the Court observes
that respondents‘ proposed line-item budgeting scheme would not terminate the controversy
nor diminish the useful purpose for its resolution since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains
legally effective and existing. Neither will the President‘s declaration that he had already
"abolished the PDAF" render the issues on PDAF moot precisely because the Executive
branch of government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress,
through the passage of a repealing law, or by the Court, through a declaration of
unconstitutionality. Instructive on this point is the following exchange between Associate
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct?
Solicitor General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of
the PDAF, the President has a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will continue the release of the soft
projects," and that started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has
the power to stop the releases in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code128 x x x. So at most the President
can suspend, now if the President believes that the PDAF is unconstitutional, can he just
refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of
the PDAF because of the CoA Report, because of the reported irregularities and this Court
can take judicial notice, even outside, outside of the COA Report, you have the report of the
whistle-blowers, the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies,
you stop and investigate, and prosecute, he has done that. But, does that mean that PDAF
has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

 xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress
passes a law to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot
and academic‘ principle is not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners –
they essentially allege grave violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the interests
involved

– the constitutionality of the very system within which significant amounts of public funds
have been and continue to be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public interest. The present petitions,
in fact, have been lodged at a time when the system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the government‘s own recognition that reforms are needed
"to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter. It is also by this finding that the Court
finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the
weight accorded by the Court to the findings made by the CoA which is the constitutionally-
mandated audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the
Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it was
emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds.
It is tasked to be vigilant and conscientious in safeguarding the proper use of the
government's, and ultimately the people's, property. The exercise of its general audit power
is among the constitutional mechanisms that gives life to the check and balance system
inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings. x x x. (Emphases
supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for
a definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments,
the CoA Chairperson estimates that thousands of notices of disallowances will be issued by
her office in connection with the findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would
eventually find their way to the courts.132 Accordingly, there is a compelling need to formulate
controlling principles relative to the issues raised herein in order to guide the bench, the bar,
and the public, not just for the expeditious resolution of the anticipated disallowance cases,
but more importantly, so that the government may be guided on how public funds should be
utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence.133 The relevance of the issues before the Court does not cease with the
passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by
its multifarious iterations throughout the course of history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just resurface wearing a different collar."135 In
Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception
in order "to prevent similar questions from re- emerging."137 The situation similarly holds true
to these cases. Indeed, the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are capable of repetition and
hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question
doctrine which, under the classic formulation of Baker v. Carr,139applies when there is found,
among others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and manageable standards
for resolving it" or "the impossibility of deciding without an initial policy determination of a
kind clearly for non- judicial discretion." Cast against this light, respondents submit that the
"the political branches are in the best position not only to perform budget-related reforms but
also to do them in response to the specific demands of their constituents" and, as such,
"urge the Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of the
"Pork Barrel System" is not an issue dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself has commanded the Court to
act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an
exercise of judicial power. More importantly, the present Constitution has not only vested the
Judiciary the right to exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established
by law. It 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." In Estrada v. Desierto,142 the expanded
concept of judicial power under the 1987 Constitution and its effect on the political question
doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court 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 government. Heretofore,
the judiciary has focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of government.
Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and
sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is
laudably cognizant of the reforms undertaken by its co-equal branches of government. But it
is by constitutional force that the Court must faithfully perform its duty. Ultimately, it is the
Court‘s avowed intention that a resolution of these cases would not arrest or in any manner
impede the endeavors of the two other branches but, in fact, help ensure that the pillars of
change are erected on firm constitutional grounds. After all, it is in the best interest of the
people that each great branch of government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers
and accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the
validity of the existing "Pork Barrel System" under which the taxes they pay have been and
continue to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer
from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers
have been allowed to sue where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose, or that public funds are
wasted through the enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that
the issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest."148 The CoA
Chairperson‘s statement during the Oral Arguments that the present controversy involves
"not merely a systems failure" but a "complete breakdown of controls"149 amplifies, in addition
to the matters above-discussed, the seriousness of the issues involved herein. Indeed, of
greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous
but factually similar dispositions to subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in relation to its prior rulings in Philconsa and
LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there exists an identity of parties,
of subject matter, and of causes of action.151 This required identity is not, however, attendant
hereto since Philconsa and LAMP, respectively involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is
essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on
the merits – in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no
need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow
if the facts are substantially the same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful countervailing considerations, like
cases ought to be decided alike. Thus, where the same questions relating to the same event
have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate
the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose and
identify projects and activities to be funded by the CDF is an encroachment by the legislature
on executive power, since said power in an appropriation act is in implementation of the law"
and that "the proposal and identification of the projects do not involve the making of laws or
the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following
main conclusions: one, under the Constitution, the power of appropriation, or the "power of
the purse," belongs to Congress; two, the power of appropriation carries with it the power to
specify the project or activity to be funded under the appropriation law and it can be detailed
and as broad as Congress wants it to be; and, three, the proposals and identifications made
by Members of Congress are merely recommendatory. At once, it is apparent that the
Philconsa resolution was a limited response to a separation of powers problem, specifically
on the propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic examination of (a) the
inter-relation between the CDF and PDAF Articles with each other, formative as they are of
the entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures
contained within a particular CDF or PDAF Article, including not only those related to the
area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore,
considered as a powerful countervailing reason against a wholesale application of the stare
decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise
in allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of appropriation and the power of
appropriation is a form of legislative power thereby lodged in Congress, then it follows that:
(a) it is Congress which should exercise such authority, and not its individual Members; (b)
such authority must be exercised within the prescribed procedure of law passage and,
hence, should not be exercised after the GAA has already been passed; and (c) such
authority, as embodied in the GAA, has the force of law and, hence, cannot be merely
recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority,
however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and current
findings on the matter, among others, the CoA Report, the Court must partially abandon its
previous ruling in Philconsa insofar as it validated the post-enactment identification authority
of Members of Congress on the guise that the same was merely recommendatory. This
postulate raises serious constitutional inconsistencies which cannot be simply excused on
the ground that such mechanism is "imaginative as it is innovative." Moreover, it must be
pointed out that the recent case of Abakada Guro Party List v. Purisima155(Abakada) has
effectively overturned Philconsa‘s allowance of post-enactment legislator participation in view
of the separation of powers principle. These constitutional inconsistencies and the Abakada
rule will be discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural
technicality and, hence, has not set any controlling doctrine susceptible of current application
to the substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first
define the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork
Barrel" as they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative
and Executive branches of government to accumulate lump-sum public funds in their offices
with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a)
lump-sum funds are allocated through the appropriations process to an individual officer; (b)
the officer is given sole and broad discretion in determining how the funds will be used or
expended; (c) the guidelines on how to spend or use the funds in the appropriation are either
vague, overbroad or inexistent; and (d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the political careers of the
disbursing official by yielding rich patronage benefits.157 They further state that the Pork Barrel
System is comprised of two (2) kinds of discretionary public funds: first, the Congressional
(or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the Presidential (or
Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history,
the Court defines the Pork Barrel System as the collective body of rules and practices that
govern the manner by which lump-sum, discretionary funds, primarily intended for local
projects, are utilized through the respective participations of the Legislative and Executive
branches of government, including its members. The Pork Barrel System involves two (2)
kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the
PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia,
a post-enactment measure that allows individual legislators to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues
of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.
a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial departments
of the government."163 To the legislative branch of government, through Congress,164belongs
the power to make laws; to the executive branch of government, through the
President,165 belongs the power to enforce laws; and to the judicial branch of government,
through the Court,166 belongs the power to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this respect, "each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere."167 Thus, "the legislature has no authority to execute or construe the law, the
executive has no authority to make or construe the law, and the judiciary has no power to
make or execute the law."168 The principle of separation of powers and its concepts of
autonomy and independence stem from the notion that the powers of government must be
divided to avoid concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one branch of
government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another. US Supreme Court decisions
instruct that the principle of separation of powers may be violated in two (2) ways: firstly,
"one branch may interfere impermissibly with the other’s performance of its constitutionally
assigned function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another."172 In other words, there is a
violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the
phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them.175 Thus,
unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget
as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its
members, should not cross over the field of implementing the national budget since, as
earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the
Court stated that "Congress enters the picture when it deliberates or acts on the budget
proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and
wisdom, formulates an appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval and passage of the GAA,
Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role
of implementing the national budget begins. So as not to blur the constitutional boundaries
between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court
held that "from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of the
law violates the principle of separation of powers and is thus unconstitutional."177 It must be
clarified, however, that since the restriction only pertains to "any role in the implementation or
enforcement of the law," Congress may still exercise its oversight function which is a
mechanism of checks and balances that the Constitution itself allows. But it must be made
clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure
allowing legislator participation beyond oversight is bereft of any constitutional basis and
hence, tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and

investigation. In particular, congressional oversight must be confined to the following:
1âw phi 1

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power
of Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the
2013 PDAF Article – "wrecks the assignment of responsibilities between the political
branches" as it is designed to allow individual legislators to interfere "way past the time it
should have ceased" or, particularly, "after the GAA is passed."179 They state that the findings
and recommendations in the CoA Report provide "an illustration of how absolute and
definitive the power of legislators wield over project implementation in complete violation of
the constitutional principle of separation of powers."180 Further, they point out that the Court in
the Philconsa case only allowed the CDF to exist on the condition that individual legislators
limited their role to recommending projects and not if they actually dictate their
implementation.181

For their part, respondents counter that the separations of powers principle has not been
violated since the President maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals.182 They
maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members
of Congress to propose and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special Provisions [of the
2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional
Pork Barrel would be the authority of legislators to participate in the post-enactment phases
of project implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program
menus187 – have been consistently accorded post-enactment authority to identify the projects
they desire to be funded through various Congressional Pork Barrel allocations. Under the
2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second paragraph of
Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature
which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said
menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within
90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may
make his choice. The same provision further authorizes legislators to identify PDAF projects
outside his district for as long as the representative of the district concerned concurs in
writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount of
projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that
any modification and revision of the project identification "shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be." From the
foregoing special provisions, it cannot be seriously doubted that legislators have been
accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013 PDAF
Article, the statutory authority of legislators to participate in the area of fund release through
congressional committees is contained in Special Provision 5 which explicitly states that "all
request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the
Senate Committee on Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first , paragraph 2, Special
Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance
for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment,
Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x
x to approve realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the concurrence of the
legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification,
fund release and fund realignment are not related to functions of congressional oversight
and, hence, allow legislators to intervene and/or assume duties that properly belong to the
sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one
form or another, authorized to participate in – as Guingona, Jr. puts it – "the various
operational aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of the separation of
powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be
overstated – from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on
the guise that the same is merely recommendatory and, as such, respondents‘ reliance on
the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate
their position that the identification authority of legislators is only of recommendatory import.
Quite the contrary, respondents – through the statements of the Solicitor General during the
Oral Arguments – have admitted that the identification of the legislator constitutes a
mandatory requirement before his PDAF can be tapped as a funding source, thereby
highlighting the indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the
individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there
is no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no
specific examples. I would doubt very much, Your Honor, because to implement, there is a
need for a SARO and the NCA. And the SARO and the NCA are triggered by an
identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying
to a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is
mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he
does not identify, he cannot avail of the PDAF Funds and his district would not be able to
have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well
as all other provisions of law which similarly allow legislators to wield any form of post-
enactment authority in the implementation or enforcement of the budget, unrelated to
congressional oversight, as violative of the separation of powers principle and thus
unconstitutional. Corollary thereto, informal practices, through which legislators have
effectively intruded into the proper phases of budget execution, must be deemed as acts of
grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded
the same unconstitutional treatment. That such informal practices do exist and have, in fact,
been constantly observed throughout the years has not been substantially disputed here. As
pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the
Oral Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of
Congress, if we enforces the initial thought that I have, after I had seen the extent of this
research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process. In
fact, the words you have been using, as the three lawyers of the DBM, and both Houses of
Congress has also been using is surprise; surprised that all of these things are now
surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense, we should be
thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and
underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through
formal measures written into the law or informal practices institutionalized in government
agencies, else the Executive department be deprived of what the Constitution has vested as
its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively

exercised by the body to which the Constitution has conferred the same. In particular,
Section 1, Article VI of the 1987 Constitution states that such power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may constitutionally
wield legislative power and no other. This premise embodies the principle of non-delegability
of legislative power, and the only recognized exceptions thereto would be: (a) delegated
legislative power to local governments which, by immemorial practice, are allowed to
legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the
authority of the President to, by law, exercise powers necessary and proper to carry out a
declared national policy in times of war or other national emergency,197or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate

rule-making authority to implementing agencies for the limited purpose of either filling up the
details of the law for its enforcement (supplementary rule-making) or ascertaining facts to
bring the law into actual operation (contingent rule-making).199The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v. Maceren200 as
follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle
of separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public
interest are necessary because of "the growing complexity of modern life, the multiplication
of the subjects of governmental regulations, and the increased difficulty of administering the
law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details
for regulating the mode or proceeding to carry into effect the law as it has been enacted. The
power cannot be extended to amending or expanding the statutory requirements or to
embrace matters not covered by the statute. Rules that subvert the statute cannot be
sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress.201 That the power to
appropriate must be exercised only through legislation is clear from Section 29(1), Article VI
of the 1987 Constitution which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." To understand what constitutes an
act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by law
of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the
2013 PDAF Article, individual legislators are given a personal lump-sum fund from which
they are able to dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts comprise the exercise
of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly, said legislators have
been conferred the power to legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative power, the Court hereby declares
the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain
the similar legislative identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and
distinct does not mean that they are absolutely unrestrained and independent of each other.
The Constitution has also provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to
veto an item written into an appropriation, revenue or tariff bill submitted to him by Congress
for approval through a process known as "bill presentment." The President‘s item-veto power
is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he
does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may
exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the Constitution.204 As stated in
Abakada, the final step in the law-making process is the "submission of the bill to the
President for approval. Once approved, it takes effect as law after the required publication."205

Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief
Executive an integral part of the law-making power. His disapproval of a bill, commonly
known as a veto, is essentially a legislative act. The questions presented to the mind of the
Chief Executive are precisely the same as those the legislature must determine in passing a
bill, except that his will be a broader point of view.

The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution. But in exercising
that authority he may not be confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge every intendment in favor of the
constitutionality of a veto in the same manner as they will presume the constitutionality of an
act as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as
to prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to
fortify the executive branch‘s role in the budgetary process.208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s item-
power as "a salutary check upon the legislative body, calculated to guard the community
against the effects of factions, precipitancy, or of any impulse unfriendly to the public good,
which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through
haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a
proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President
may be able to exercise his power of item veto, must contain "specific appropriations of
money" and not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item

characterized by singular correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item."211 This treatment
not only allows the item to be consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto the same. Based on the
foregoing formulation, the existing Calamity Fund, Contingent Fund and the Intelligence
Fund, being appropriations which state a specified amount for a specific purpose, would then
be considered as "line- item" appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must
be allocated for its own corresponding purpose for such component to be considered as a
proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may
even have several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in
which case the related purposes shall be deemed sufficiently specific for the exercise of the
President‘s item veto power. Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as long as they follow the
rule on singular correspondence as herein discussed. Anent special purpose funds, it must
be added that Section 25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended, and shall be supported
by funds actually available as certified by the National Treasurer, or t o be raised by a
corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds,
Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for
a singular lump-sum amount to be tapped as a source of funding for multiple purposes.
Since such appropriation type necessitates the further determination of both the actual
amount to be expended and the actual purpose of the appropriation which must still be
chosen from the multiple purposes stated in the law, it cannot be said that the appropriation
law already indicates a "specific appropriation of money‖ and hence, without a proper line-
item which the President may veto. As a practical result, the President would then be faced
with the predicament of either vetoing the entire appropriation if he finds some of its
purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder
some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement
also raises non-delegability issues considering that the implementing authority would still
have to determine, again, both the actual amount to be expended and the actual purpose of
the appropriation. Since the foregoing determinations constitute the integral aspects of the
power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-
sum appropriation, the legislator‘s identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on."212 Accordingly, they submit that
the "item veto power of the President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process
which is intended to meet the demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations which are barely foreseen when
a GAA is enacted. They argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of
the law, it necessarily means that the actual items of PDAF appropriation would not have
been written into the General Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed
procedure of presentment and consequently impairs the President‘s power of item veto. As
petitioners aptly point out, the above-described system forces the President to decide
between (a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF
Article would remain constitutionally flawed since it would then operate as a prohibited form
of lump-sum appropriation above-characterized. In particular, the lump-sum amount of
₱24.79 Billion would be treated as a mere funding source allotted for multiple purposes of
spending, i.e., scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the appropriation for further
determination and, therefore, does not readily indicate a discernible item which may be
subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that
would aid in more stringently auditing the utilization of said Funds."216 Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program, activity
or project, and per implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well
as all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such
budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first
and essential truth of the matter is that unconstitutional means do not justify even
commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork
Barrel operate defies public accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested partners."219 They also claim
that the system has an effect on re- election as "the PDAF excels in self-perpetuation of
elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as
such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people‘s trust. The notion of a public
trust connotes accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public
funds may be checked is the power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by
either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to
the power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested
"observers" when scrutinizing, investigating or monitoring the implementation of the
appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither shall he, directly or indirectly, be interested financially in
any contract with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not intervene in
any matter before any office of the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a

matter before another office of government – renders them susceptible to taking undue
advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or
the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in
office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be
linked to this area of interest, the use of his PDAF for re-election purposes is a matter which
must be analyzed based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former‘s post-enactment
participation, may affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel System‘s intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate
Section 14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013
PDAF Article and other forms of Congressional Pork Barrel of similar nature are deemed as
unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are
members of political dynasties to accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-
executing due to the qualifying phrase "as may be defined by law." In this respect, said
provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action.226 Therefore, since there appears
to be no standing law which crystallizes the policy on political dynasties for enforcement, the
Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely
speculative since it has not been properly demonstrated how the Pork Barrel System would
be able to propagate political dynasties.

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and
Sections 2 and 3, Article X of the 1987 Constitution which read as follows:

ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and
operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government
Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically
explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State
to empower local government units (LGUs) to develop and ultimately, become self-sustaining
and effective contributors to the national economy. As explained by the Court in Philippine
Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy
of local autonomy which is intended to provide the needed impetus and encouragement to
the development of our local political subdivisions as "self - reliant communities." In the
words of Jefferson, "Municipal corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will enable their inhabitants to fully
exploit their resources and more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic. This objective could be blunted
by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local
development.230 The Court agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is
also a recognition that individual members of Congress, far more than the President and
their congressional colleagues, are likely to be knowledgeable about the needs of their
respective constituents and the priority to be given each project."231 Drawing strength from
this pronouncement, previous legislators justified its existence by stating that "the relatively
small projects implemented under the Congressional Pork Barrel complement and link the
national development goals to the countryside and grassroots as well as to depressed areas
which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and budgetary
reforms, President Aquino mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the
system which actually belies the avowed intention of "making equal the unequal." In
particular, the Court observes that the gauge of PDAF and CDF allocation/division is based
solely on the fact of office, without taking into account the specific interests and peculiarities
of the district the legislator represents. In this regard, the allocation/division limits are clearly
not based on genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a highly-
urbanized metropolis gets the same amount of funding as a district representative of a far-
flung rural province which would be relatively "underdeveloped" compared to the former. To
add, what rouses graver scrutiny is that even Senators and Party-List Representatives – and
in some years, even the Vice-President – who do not represent any locality, receive funding
from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately,
the PDAF and CDF had become personal funds under the effective control of each legislator
and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are
already legally mandated to "assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially
geared towards managing local affairs,235 their programs, policies and resolutions should not
be overridden nor duplicated by individual legislators, who are national officers that have no
law-making authority except only when acting as a body. The undermining effect on local
autonomy caused by the post-enactment authority conferred to the latter was succinctly put
by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure
planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now,

amended by PD 1993), which respectively provide for the Malampaya Funds and the
Presidential Social Fund, as invalid appropriations laws since they do not have the "primary
and specific" purpose of authorizing the release of public funds from the National Treasury.
Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary
and specific‖ purpose of PD 910 is the creation of an Energy Development Board and
Section 8 thereof only created a Special Fund incidental thereto.237 In similar regard,
petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary and specific"
purpose of PD 1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In
view of the foregoing, petitioners suppose that such funds are being used without any valid
law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the
1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the
word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to
appropriate exists. As the Constitution "does not provide or prescribe any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa –
be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate
may be gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the authorization or appropriation
under the questioned presidential decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting legislations) as well as
expressly for the current fiscal year (as by enactment of laws by the present Congress), just
as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general
appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears
from the language employed (In re Continuing Appropriations, 32 P. 272), whether in the
past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the

designated purpose. The word appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the constitution means the setting
apart a portion of the public funds for a public purpose. No particular form of words is
necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases
supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation
must be the "primary and specific" purpose of the law in order for a valid appropriation law to
exist. To reiterate, if a legal provision designates a determinate or determinable amount of
money and allocates the same for a particular public purpose, then the legislative intent to
appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an
"appropriation made by law" under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from
service contracts and agreements such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from concessionaires, representing
unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as
the government share representing royalties, rentals, production share on service contracts
and similar payments on the exploration, development and exploitation of energy resources,
shall form part of a Special Fund to be used to finance energy resource development and
exploitation programs and projects of the government and for such other purposes as may
be hereafter directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise
Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the
priority infrastructure development projects and to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded
that (a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues,
and receipts of the Energy Development Board from any and all sources" (a determinable
amount) "to be used to finance energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter directed by the
President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by PD
1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR,
or 60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the restoration
of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines" (also a specified public purpose), are legal
appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed
as a legal appropriation under the said constitutional provision precisely because, as earlier
stated, it contains post-enactment measures which effectively create a system of
intermediate appropriations. These intermediate appropriations are the actual appropriations
meant for enforcement and since they are made by individual legislators after the GAA is
passed, they occur outside the law. As such, the Court observes that the real appropriation
made under the 2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF,
but rather the post-enactment determinations made by the individual legislators which are, to
repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article does not
constitute an "appropriation made by law" since it, in its truest sense, only authorizes
individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue

delegation of legislative power since the phrase "and for such other purposes as may be
hereafter directed by the President" gives the President "unbridled discretion to determine for
what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and thus, construe the phrase
"and for such other purposes as may be hereafter directed by the President" to refer only to
other purposes related "to energy resource development and exploitation programs and
projects of the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public

purpose is sufficient for a legal appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making.246 There are two (2) fundamental tests to
ensure that the legislative guidelines for delegated rule-making are indeed adequate. The
first test is called the "completeness test." Case law states that a law is complete when it
sets forth therein the policy to be executed, carried out, or implemented by the delegate. On
the other hand, the second test is called the "sufficient standard test." Jurisprudence holds
that a law lays down a sufficient standard when it provides adequate guidelines or limitations
in the law to map out the boundaries of the delegate‘s authority and prevent the delegation
from running riot.247 To be sufficient, the standard must specify the limits of the delegate‘s
authority, announce the legislative policy, and identify the conditions under which it is to be
implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910
constitutes an undue delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the President‘s authority with respect
to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase
gives the President wide latitude to use the Malampaya Funds for any other purpose he may
direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of
the law. That the subject phrase may be confined only to "energy resource development and
exploitation programs and projects of the government" under the principle of ejusdem
generis, meaning that the general word or phrase is to be construed to include – or be
restricted to – things akin to, resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource development
and exploitation programs and projects of the government" states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also
exhausts the class it represents, namely energy development programs of the
government;250 and, third, the Executive department has, in fact, used the Malampaya Funds
for non-energy related purposes under the subject phrase, thereby contradicting
respondents‘ own position that it is limited only to "energy resource development and
exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910
may have passed the completeness test since the policy of energy development is clearly
deducible from its text, the phrase "and for such other purposes as may be hereafter directed
by the President" under the same provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8,
insofar as it allows for the use of the Malampaya Funds "to finance energy resource
development and exploitation programs and projects of the government," remains legally
effective and subsisting. Truth be told, the declared unconstitutionality of the aforementioned
phrase is but an assurance that the Malampaya Funds would be used – as it should be used
– only in accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12
of PD 1869 has already been amended by PD 1993 which thus moots the parties‘
submissions on the same.252 Nevertheless, since the amendatory provision may be readily
examined under the current parameters of discussion, the Court proceeds to resolve its
constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential

Social Fund may be used "to first, finance the priority infrastructure development projects
and second, to finance the restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President of the Philippines." The
Court finds that while the second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration purposes which arise
from calamities, the first indicated purpose, however, gives him carte blanche authority to
use the same fund for any infrastructure project he may so determine as a "priority". Verily,
the law does not supply a definition of "priority in frastructure development projects" and
hence, leaves the President without any guideline to construe the same. To note, the
delimitation of a project as one of "infrastructure" is too broad of a classification since the
said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and
facilities (such as highways, schools, bridges, sewers, and water-systems) needed to
support commerce as well as economic and residential development."253 In fine, the phrase
"to finance the priority infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 –
it lies independently unfettered by any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains
legally effective and subsisting.
D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the
Court did so in the context of its pronouncements made in this Decision – petitioners equally
pray that the Executive Secretary and/or the DBM be ordered to release to the CoA and to
the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and
the recipient entities or individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary funds, including
the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x from
2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals,
and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which
read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition
for mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by
the government agency in custody thereof, the duty to disclose the information of public
concern, and to afford access to public records cannot be discretionary on the part of said
agencies. Certainly, its performance cannot be made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional duty, not being discretionary,
its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to
be enforced and the concomitant duty of the State are unequivocably set forth in the
Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case
is, whether the information sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the
right to information does not include the right to compel the preparation of "lists, abstracts,
summaries and the like." In the same case, it was stressed that it is essential that the
"applicant has a well -defined, clear and certain legal right to the thing demanded and that it
is the imperative duty of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information. The pertinent
portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has
a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No.
L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August
27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary and/or the DBM of their
requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would form the bases of the latter‘s duty to
furnish them with the documents requested. While petitioners pray that said information be
equally released to the CoA, it must be pointed out that the CoA has not been impleaded as
a party to these cases nor has it filed any petition before the Court to be allowed access to or
to compel the release of any official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information requested is a matter of
significant public concern, however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally important interests of the
government, it is constrained to deny petitioners‘ prayer on this score, without prejudice to a
proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be
furnished with such schedule/list and report and not in any way deny them, or the general
public, access to official documents which are already existing and of public record. Subject
to reasonable regulation and absent any valid statutory prohibition, access to these
documents should not be proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list requested by petitioners therein,
it nonetheless allowed access to the documents sought for by the latter, subject, however, to
the custodian‘s reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to or loss of the records may be
avoided, that undue interference with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to inspect the records may be insured
Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil.
383, 387. The petition, as to the second and third alternative acts sought to be done by
petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda
Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited
to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO
or the Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
generally left to the prerogative of the political branches of government. Hence, lest the Court
itself overreach, it must equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the
concept of released funds. In response to the Court‘s September 10, 2013 TRO that
enjoined the release of the remaining PDAF allocated for the year 2013, the DBM issued
Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which
pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by
the implementing agencies prior to the issuance of the TRO, may continually be
implemented and disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second,
that said SARO had been obligated by the implementing agency concerned prior to the
issuance of the Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO
does not yet involve the release of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if
covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and
unobligated allotments." They explain that once a SARO has been issued and obligated by
the implementing agency concerned, the PDAF funds covered by the same are already
"beyond the reach of the TRO because they cannot be considered as ‘remaining PDAF.‘"
They conclude that this is a reasonable interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10,
2013 TRO should be lifted is a matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect
of converting the temporary injunction into a permanent one. Hence, from the promulgation
of this Decision, the release of the remaining PDAF funds for 2013, among others, is now
permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
resolved as it has a practical impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds covered by obligated
SAROs, at the time this Decision is promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that
funds covered by an obligated SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific authority issued to identified
agencies to incur obligations not exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of which is subject to compliance
with specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not have the
direct and immediate effect of placing public funds beyond the control of the disbursing
authority. In fact, a SARO may even be withdrawn under certain circumstances which will
prevent the actual release of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA,264 which is subsequent to the issuance of a SARO. As may
be determined from the statements of the DBM representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it
comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the
SAROs issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which
have been "released." In this respect, therefore, the disbursement of 2013 PDAF funds
which are only covered by obligated SAROs, and without any corresponding NCAs issued,
must, at the time of this Decision’s promulgation, be enjoined and consequently reverted to
the unappropriated surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot
be disbursed even though already obligated, else the Court sanctions the dealing of funds
coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have
been obligated but not released – meaning, those merely covered by a SARO – under the
phrase "and for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund
under the phrase "to finance the priority infrastructure development projects" pursuant to
Section 12 of PD 1869, as amended by PD 1993, which were altogether declared by the
Court as unconstitutional. However, these funds should not be reverted to the general fund
as afore-stated but instead, respectively remain under the Malampaya Funds and the
Presidential Social Fund to be utilized for their corresponding special purposes not otherwise
declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such
other purposes as may be hereafter directed by the President" under Section 8 of PD 910,
and (2) "to finance the priority infrastructure development projects" under Section 12 of PD
1869, as amended by PD 1993, must only be treated as prospective in effect in view of the
operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that
precisely because the judiciary is the governmental organ which has the final say on whether
or not a legislative or executive measure is valid, a period of time may have elapsed before it
can exercise the power of judicial review that may lead to a declaration of nullity. It would be
to deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which cannot justly be
ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of
our history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight,
post-enactment authority in vital areas of budget execution, the system has violated the
principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created a system of budgeting wherein
items are not textualized into the appropriations bill, it has flouted the prescribed procedure
of presentment and, in the process, denied the President the power to veto items ; insofar as
it has diluted the effectiveness of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they may be called to monitor
and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature,
despite the existence of capable local institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the President the power to appropriate
funds intended by law for energy-related purposes only to other purposes he may deem fit as
well as other public funds under the broad classification of "priority infrastructure
development projects," it has once more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
methods and mechanisms the Court has herein pointed out should never again be adopted
in any system of governance, by any name or form, by any semblance or similarity, by any
influence or effect. Disconcerting as it is to think that a system so constitutionally unsound
has monumentally endured, the Court urges the people and its co-stewards in government to
look forward with the optimism of change and the awareness of the past. At a time of great
civic unrest and vociferous public debate, the Court fervently hopes that its Decision today,
while it may not purge all the wrongs of society nor bring back what has been lost, guides
this nation to the path forged by the Constitution so that no one may heretofore detract from
its cause nor stray from its course. After all, this is the Court‘s bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the
entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional
Insertions, which authorize/d legislators – whether individually or collectively organized into
committees – to intervene, assume or participate in any of the various post-enactment
stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment,
unrelated to the power of congressional oversight; (c) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the
various Congressional Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly
deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction;
and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, for both failing the sufficient standard test in
violation of the principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared
to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated
for the year 2013, as well as for all previous years, and the funds sourced from (1) the
Malampaya Funds under the phrase "and for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the
Presidential Social Fund under the phrase "to finance the priority infrastructure development
projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not
covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders
(SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds
covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds
and the Presidential Social Fund shall remain therein to be utilized for their respective
special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the
Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments
and utilization of the funds subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these funds must, however, not be
prohibited but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper mandamus
case which they or the Commission on Audit may choose to pursue through a separate
petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these
cases in the budgetary deliberations of Congress as the same is a matter left to the
prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the
bounds of reasonable dispatch, investigate and accordingly prosecute all government
officials and/or private individuals for possible criminal offenses related to the irregular,
improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ROMARICO J. MENDOZA, G.R. No. 183891

Petitioner, Present:

BRION, J.,
Chairperson,
PERALTA,
BERSAMIN,
ABAD, and
- versus - VILLARAMA, JR., JJ.
 Promulgated:

October 19, 2011

PEOPLE OF THE PHILIPPINES,

Respondent.

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

R E SO L U T I O N
BRION, J.:

We resolve the motion for reconsideration filed by petitioner Romarico J.

Mendoza seeking the reversal of our Decision dated August 3,
2010. The Decision affirmed the petitioners conviction for his failure to
remit the Social Security Service (SSS) contributions of his employees. The
petitioner anchors the present motion on his supposed inclusion within the
coverage of Republic Act (RA) No. 9903 or the Social Security Condonation
Law of 2009, whose passage the petitioner claims to be a supervening
event in his case. He further invokes the equal protection clause in support of
his motion.

In our Decision dated August 3, 2010, we AFFIRMED, with

modification, the decree of conviction issued by both the trial and appellate
courts for the petitioners violation of Section 22(a) and (d), in relation to
Section 28 of RA No. 8282 or the Social Security Act of 1997. To recall its
highlights, our Decisionemphasized that the petitioner readily admitted
during trial that he did not remit the SSS premium contributions of his
employees at Summa Alta Tierra Industries, Inc. from August 1998 to July
1999, in the amount of P239,756.80; inclusive of penalties, this unremitted
amount totaled to P421,151.09. The petitioners explanation for his failure to
remit, which the trial court disbelieved, was that during this period, Summa
Alta Tierra Industries, Inc. shut down as a result of the general decline in the
economy. The petitioner pleaded good faith and lack of criminal intent as his
defenses.

We ruled that the decree of conviction was founded on proof beyond

reasonable doubt, based on the following considerations: first, the remittance
of employee contributions to the SSS is mandatory under RA No. 8282;
and second, the failure to comply with a special law being malum
prohibitum, the defenses of good faith and lack of criminal intent are
immaterial.

The petitioner further argued that since he was designated in

the Information as a proprietor, he was without criminal liability since
proprietors are not among the corporate officers specifically enumerated in
Section 28(f) of RA No. 8282 to be criminally liable for the violation of its
provisions. We rejected this argument based on our ruling in Garcia v.
Social Security Commission Legal and Collection.[1] We ruled that to sustain
the petitioners argument would be to allow the unscrupulous to conveniently
escape liability merely through the creative use of managerial titles.

After taking into account the Indeterminate Penalty Law and Article
315 of the Revised Penal Code, we MODIFIED the penalty originally
imposed by the trial court[2] and, instead, decreed the penalty of four (4)
years and two (2) months of prision correccional, as minimum, to twenty
(20) years of reclusion temporal, as maximum.

In the present motion for reconsideration, the petitioner points out that
pending his appeal with the Court of Appeals (CA), he voluntarily paid the
SSS the amount of P239,756.80 to settle his delinquency.[3] Note that the
petitioner also gave notice of this payment to the CA via a Motion for
Reconsideration and a Motion for New Trial. Although the People did not
contest the fact of voluntary payment, the CA nevertheless denied the said
motions.

The present motion for reconsideration rests on the following points:

 First. On January 7, 2010, during the pendency of the petitioners case
before the Court, then President Gloria Macapagal-Arroyo signed RA No.
9903 into law.RA No. 9903 mandates the effective withdrawal of all
pending cases against employers who would remit their delinquent
contributions to the SSS within a specified period, viz., within six
months after the laws effectivity.[4] The petitioner claims that in view of
RA No. 9903 and its implementing rules, the settlement of his delinquent
contributions in 2007 entitles him to an acquittal. He invokes the equal
protection clause in support of his plea.

Second. The petitioner alternatively prays that should the Court find his
above argument wanting, he should still be acquitted since the prosecution
failed to prove all the elements of the crime charged.
Third. The petitioner prays that a fine be imposed, not imprisonment,
should he be found guilty.

The Solicitor General filed a Manifestation In Lieu of

Comment and claims that the passage of RA No. 9903 constituted a
supervening event in the petitioners case that supports the petitioners
acquittal [a]fter a conscientious review of the case.[5]

THE COURTS RULING

The petitioners arguments supporting his prayer for acquittal fail to convince
us. However, we find basis to allow waiver of the petitioners liability for
accrued penalties.

The petitioners liability for the crime is

a settled matter

Upfront, we reject the petitioners claim that the prosecution failed to prove
all the elements of the crime charged. This is a matter that has been resolved
in our Decision, and the petitioner did not raise anything substantial to merit
the reversal of our finding of guilt. To reiterate, the petitioners conviction
was based on his admission that he failed to remit his employees
contribution to the SSS.

The petitioner cannot benefit from the

terms of RA No. 9903, which condone
only employers who pay their
delinquencies within six months from
the laws effectivity

We note that the petitioner does not ask for the reversal of his
conviction based on the authority of RA No. 9903; he avoids making a
straightforward claim because this law plainly does not apply to him or to
others in the same situation. The clear intent of the law is to grant
condonation only to employers with delinquent contributions or pending
cases for their delinquencies and who pay their delinquencies within the six
(6)-month period set by the law. Mere payment of unpaid contributions does
not suffice; it is payment within, and only within, the six (6)-month
availment period that triggers the applicability of RA No. 9903.

True, the petitioners case was pending with us when RA No. 9903
was passed. Unfortunately for him, he paid his delinquent SSS contributions
in 2007. By paying outside of the availment period, the petitioner effectively
placed himself outside the benevolent sphere of RA No. 9903. This is how
the law is written: it condones employers and only those employers with
unpaid SSS contributions or with pending cases who pay within the six (6)-
month period following the laws date of effectivity. Dura lex, sed lex.

The petitioners awareness that RA No. 9903 operates as discussed above is

apparent in his plea for equal protection. In his motion, he states that

[he] is entitled under the equal protection clause to the dismissal of

the case against him since he had already paid the subject delinquent
contributions due to the SSS which accepted the payment as borne by
the official receipt it issued (please see Annex A). The equal
protection clause requires that similar subjects, [sic] should not be
treated differently, so as to give undue favor to some and unjustly
discriminate against others. The petitioner is no more no less in the
 same situation as the employer who would enjoy freedom from
criminal prosecution upon payment in full of the delinquent
contributions due and payable to the SSS within six months from the
effectivity of Republic Act No. 9903.[6]

The Court cannot amplify the scope of RA No. 9903 on the ground of
equal protection, and acquit the petitioner and other delinquent employers
like him; it would in essence be an amendment of RA No. 9903, an act of
judicial legislation abjured by the trias politica principle.[7]

RA No. 9903 creates two classifications of employers delinquent in

remitting the SSS contributions of their employees: (1) those delinquent
employers who pay within the six (6)-month period (the former group), and
(2) those delinquent employers who pay outside of this availment period (the
latter group). The creation of these two classes is obvious and unavoidable
when Section 2 and the last proviso of Section 4[8] of the law are read
together. The same provisions show the laws intent to limit the benefit of
condonation to the former group only; had RA No. 9903 likewise intended
to benefit the latter group, which includes the petitioner, it would have
expressly declared so. Laws granting condonation constitute an act of
benevolence on the governments part, similar to tax amnesty laws; their
terms are strictly construed against the applicants. Since the law itself
excludes the class of employers to which the petitioner belongs, no ground
exists to justify his acquittal. An implementing rule or regulation must
conform to and be consistent with the provisions of the enabling statute; it
cannot amend the law either by abridging or expanding its scope.[9]

For the same reason, we cannot grant the petitioners prayer to impose a fine
in lieu of imprisonment; neither RA No. 8282 nor RA No. 9903 authorizes
the Court to exercise this option.

On the matter of equal protection, we stated in Tolentino v. Board of

Accountancy, et al.[10] that the guarantee simply means that no person or
class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances. In People v. Cayat,[11]we further summarized the
jurisprudence on equal protection in this wise:

It is an established principle of constitutional law that the guaranty

of the equal protection of the laws is not violated by a legislation
based on reasonable classification. And the classification, to be
reasonable, (1) must rest on substantial distinctions; (2) must be
germane to the purposes of the law; (3) must not be limited to
existing conditions only; and (4) must apply equally to all
members of the same class.
The difference in the dates of payment of delinquent contributions
provides a substantial distinction between the two classes of employers. In
limiting the benefits of RA No. 9903 to delinquent employers who
pay within the six (6)-month period, the legislature refused to allow a
sweeping, non-discriminatory condonation to all delinquent employers, lest
the policy behind RA No. 8282 be undermined.

The petitioner is entitled to a waiver of

his accrued penalties

Despite our discussion above, the petitioners move to have

our Decision reconsidered is not entirely futile. The one benefit the
petitioner can obtain from RA No. 9903 is the waiver of his accrued
penalties, which remain unpaid in the amount of P181,394.29. This waiver is
derived from the last proviso of Section 4 of RA No. 9903:

Provided, further, That for reason of equity, employers who

settled arrears in contributions before the effectivity of this Act
shall likewise have their accrued penalties waived.

This proviso is applicable to the petitioner who settled his contributions long
before the passage of the law. Applied to the petitioner, therefore, RA No.
9903 only works to allow a waiver of his accrued penalties, but not the
reversal of his conviction.
Referral to the Chief Executive for possible
exercise of executive clemency

We realize that with the affirmation of the petitioners conviction for

violation of RA No. 8282, he stands to suffer imprisonment for four (4)
years and two (2) months of prision correccional, as minimum, to twenty
(20) years of reclusion temporal, as maximum, notwithstanding the payment
of his delinquent contribution.

Under Article 5 of the Revised Penal Code,[12] the courts are bound to apply
the law as it is and impose the proper penalty, no matter how harsh it might
be. The same provision, however, gives the Court the discretion to
recommend to the President actions it deems appropriate but are beyond its
power when it considers the penalty imposed as excessive. Although the
petitioner was convicted under a special penal law, the Court is not
precluded from giving the Revised Penal Code suppletory application in
light of Article 10[13] of the same Code and our ruling in People v. Simon.[14]
WHEREFORE, the Court PARTIALLY GRANTS petitioner
Romarico J. Mendozas motion for reconsideration. The Court AFFIRMS the
petitioners conviction for violation of Section 22(a) and (d), in relation to
Section 28 of Republic Act No. 8282, and the petitioner is thus sentenced to
an indeterminate prison term of four (4) years and two (2) months of prision
correccional, as minimum, to twenty (20) years of reclusion temporal, as
maximum. In light of Section 4 of Republic Act No. 9903, the petitioners
liability for accrued penalties is considered WAIVED. Considering the
circumstances of the case, the Court transmits the case to the Chief
Executive, through the Department of Justice, and RECOMMENDS the
grant of executive clemency to the petitioner.

SO ORDERED.

BAI SANDRA S. A. SEMA, G.R. No. 177597

Petitioner,

- versus -
COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,
Respondents.
x------------------------x

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. July 16, 2008

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

DECISION
CARPIO, J.:

The Case

These consolidated petitions[1] seek to annul Resolution No. 7902, dated 10

May 2007, of the Commission on Elections (COMELEC) treating Cotabato
City as part of the legislative district of the Province of Shariff Kabunsuan.[2]

The Facts

The Ordinance appended to the 1987 Constitution apportioned two

legislative districts for the Province of Maguindanao. The first legislative
district consists of Cotabato City and eight municipalities.[3] Maguindanao
forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as
amended by Republic Act No. 9054 (RA 9054).[4] Although under the
Ordinance, Cotabato City forms part of Maguindanaos first legislative
district, it is not part of the ARMM but of Region XII, having voted against
its inclusion in the ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional

Assembly, exercising its power to create provinces under Section 19, Article
VI of RA 9054,[5]enacted Muslim Mindanao Autonomy Act No. 201 (MMA
Act 201) creating the Province of Shariff Kabunsuan composed of the eight
municipalities in the first district of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin
Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan
Mastura, and Upi are hereby separated from
the Province of Maguindanao and constituted into a distinct and
independent province, which is hereby created, to be known as
the Province of Shariff Kabunsuan.

xxxx
 Sec. 5. The corporate existence of this province shall
commence upon the appointment by the Regional Governor or
election of the governor and majority of the regular members of
the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of

Maguindanao shall continue to serve their unexpired terms in the
province that they will choose or where they are
residents: Provided, that where an elective position in both
provinces becomes vacant as a consequence of the creation of the
Province of Shariff Kabunsuan, all incumbent elective provincial
officials shall have preference for appointment to a higher elective
vacant position and for the time being be appointed by the
Regional Governor, and shall hold office until their successors
shall have been elected and qualified in the next local elections;
Provided, further, that they shall continue to receive the salaries
they are receiving at the time of the approval of this Act until the
new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the
members of the Sangguniang Panlalawigan of the mother
province.

Except as may be provided by national law, the existing

legislative district, which includes Cotabato as a part thereof, shall
remain.

Later, three new municipalities[6] were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total number of
municipalities to 11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district. Cotabato City,
although part of Maguindanaos first legislative district, is not part of
the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a

plebiscite held on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City
passed Resolution No. 3999 requesting the COMELEC to clarify the status
of Cotabato City in view of the conversion of the First District of
Maguindanao into a regular province under MMA Act 201.
In answer to Cotabato Citys query, the COMELEC issued Resolution No.
07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as
part of Shariff Kabunsuan in the First Legislative District of Maguindanao.
Resolution No. 07-0407, which adopted the recommendation of the
COMELECs Law Department under a Memorandum dated 27 February
2007,[7] provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it

hereby resolves, to adopt the recommendation of the Law
Department that pending the enactment of the appropriate law
by Congress, to maintain the status quo with Cotabato City as
part of Shariff Kabunsuan in the First Legislative District of
Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the

COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating
that Maguindanaos first legislative district is composed only
of Cotabato City because of the enactment of MMA Act 201.[8]

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of

these petitions, amending Resolution No. 07-0407 by renaming the
legislative district in question
as Shariff Kabunsuan Province with Cotabato City (formerly First District of
Maguindanao with Cotabato City).[9]

In G.R. No. 177597, Sema, who was a candidate in the 14 May

2007 elections for Representative of Shariff Kabunsuan with Cotabato City,
prayed for the nullification of COMELEC Resolution No. 7902 and the
exclusion from canvassing of the votes cast in Cotabato City for that office.
Sema contended that Shariff Kabunsuan is entitled to one representative in
Congress under Section 5 (3), Article VI of the Constitution[10] and Section 3
of the Ordinance appended to the Constitution.[11]Thus, Sema asserted that
the COMELEC acted without or in excess of its jurisdiction in issuing
Resolution No. 7902 which maintained the status quo in Maguindanaos first
legislative district despite the COMELECs earlier directive in Resolution
No. 7845 designating Cotabato City as the lone component of Maguindanaos
reapportioned first legislative district.[12] Sema further claimed that in issuing
Resolution No. 7902, the COMELEC usurped Congress power to create or
reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General
(OSG), chose not to reach the merits of the case and merely contended that
(1) Sema wrongly availed of the writ of certiorari to nullify COMELEC
Resolution No. 7902 because the COMELEC issued the same in the exercise
of its administrative, not quasi-judicial, power and (2) Semas prayer for the
writ of prohibition in G.R. No. 177597 became moot with the proclamation
of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June
2007 as representative of the legislative district of Shariff Kabunsuan
Province with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped

from questioning COMELEC Resolution No. 7902 because in her certificate
of candidacy filed on 29 March 2007, Sema indicated that she was seeking
election as representative of Shariff Kabunsuan
including Cotabato City. Respondent Dilangalen added that COMELEC
Resolution No. 7902 is constitutional because it did not apportion a
legislative district for Shariff Kabunsuan or reapportion the legislative
districts in Maguindanao but merely renamed Maguindanaos first legislative
district. Respondent Dilangalen further claimed that the COMELEC could
not reapportion Maguindanaos first legislative district to make Cotabato City
its sole component unit as the power to reapportion legislative districts lies
exclusively with Congress, not to mention that Cotabato City does not meet
the minimum population requirement under Section 5 (3), Article VI of the
Constitution for the creation of a legislative district within a city.[13]

Sema filed a Consolidated Reply controverting the matters raised in

respondents Comments and reiterating her claim that the COMELEC
acted ultra vires in issuing Resolution No. 7902.
 In the Resolution of 4 September 2007, the Court required the parties
in G.R. No. 177597 to comment on the issue of whether a province created
by the ARMM Regional Assembly under Section 19, Article VI of RA 9054
is entitled to one representative in the House of Representatives without
need of a national law creating a legislative district for such new province.
The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following

grounds: (a) the Court in Felwa v. Salas[14] stated that when a province is
created by statute, the corresponding representative district comes into
existence neither by authority of that statute which cannot provide otherwise
nor by apportionment, but by operation of the Constitution, without a
reapportionment; (b) Section 462 of Republic Act No. 7160 (RA 7160)
affirms the apportionment of a legislative district incident to the creation of a
province; and (c) Section 5 (3), Article VI of the Constitution and Section 3
of the Ordinance appended to the Constitution mandate the apportionment of
a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently

abandoned its earlier stance on the propriety of issuing Resolution Nos. 07-
0407 and 7902 and joined causes with Sema, contending that Section 5 (3),
Article VI of the Constitution is self-executing. Thus, every new province
created by the ARMM Regional Assembly is ipso facto entitled to one
representative in the House of Representatives even in the absence of a
national law; and

(3) Respondent Dilangalen answered the issue in the negative on the

following grounds: (a) the province contemplated in Section 5 (3), Article
VI of the Constitution is one that is created by an act of Congress taking into
account the provisions in RA 7160 on the creation of provinces; (b) Section
3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the
power to enact measures relating to national elections, which encompasses
the apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every province the
ARMM Regional Assembly creates will lead to the disproportionate
representation of the ARMM in the House of Representatives as
the Regional Assembly can create provinces without regard to the
requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a
population of less than 250,000, is not entitled to a representative in the
House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No.

177597 in oral arguments on the following issues: (1) whether Section 19,
Article VI of RA 9054, delegating to the ARMM Regional Assembly the
power to create provinces, is constitutional; and (2) if in the affirmative,
whether a province created under Section 19, Article VI of RA 9054 is
entitled to one representative in the House of Representatives without need
of a national law creating a legislative district for such new province.[15]

In compliance with the Resolution dated 27 November 2007, the

parties in G.R. No. 177597 filed their respective Memoranda on the issues
raised in the oral arguments.[16] On the question of the constitutionality of
Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted
the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is

constitutional (a) as a valid delegation by Congress to the ARMM of the
power to create provinces under Section 20 (9), Article X of the Constitution
granting to the autonomous regions, through their organic acts, legislative
powers over other matters as may be authorized by law for the promotion of
the general welfare of the people of the region and (b) as an amendment to
Section 6 of RA 7160.[17] However, Sema concedes that, if taken literally,
the grant in Section 19, Article VI of RA 9054 to the ARMM Regional
Assembly of the power to prescribe standards lower than those mandated in
RA 7160 in the creation of provinces contravenes Section 10, Article X of
the Constitution.[18] Thus, Sema proposed that Section 19 should be
construed as prohibiting the Regional Assembly from prescribing standards
x x x that do not comply with the minimum criteria under RA 7160.[19]

(2) Respondent Dilangalen contended that Section 19, Article VI of

RA 9054 is unconstitutional on the following grounds: (a) the power to
create provinces was not among those granted to the autonomous regions
under Section 20, Article X of the Constitution and (b) the grant under
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the
power to prescribe standards lower than those mandated in Section 461 of
RA 7160 on the creation of provinces contravenes Section 10, Article X of
the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC
adopted in its Compliance with the Resolution of 4 September 2007) and
contended that Section 19, Article VI of RA 9054 is unconstitutional
because (a) it contravenes Section 10 and Section 6,[20] Article X of the
Constitution and (b) the power to create provinces was withheld from the
autonomous regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19,

Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district
for such new province, Sema and respondent Dilangalen reiterated in their
Memoranda the positions they adopted in their Compliance with the
Resolution of 4 September 2007. The COMELEC deemed it unnecessary to
submit its position on this issue considering its stance that Section 19,
Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed

during the oral arguments on 27 November 2007. Thus, in the Resolution
of 19 February 2008, the Court ordered G.R. No. 178628 consolidated
with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's
contention that the COMELEC acted ultra vires in issuing Resolution No.
7902 depriving the voters of Cotabato City of a representative in the House
of Representatives. In its Comment to the petition in G.R.No. 178628, the
COMELEC, through the OSG, maintained the validity of COMELEC
Resolution No. 7902 as a temporary measure pending the enactment by
Congress of the appropriate law.

The Issues
 The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily
(1) whether the writs of Certiorari, Prohibition, and Mandamus are
proper to test the constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato City mooted the
petition in G.R. No. 177597.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM
Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI
of RA 9054 is entitled to one representative in the House of Representatives
without need of a national law creating a legislative district for such
province.

II. In G.R No. 177597 and G.R No. 178628, whether

COMELEC Resolution No. 7902 is valid for maintaining the status quo in
the first legislative district of Maguindanao (as Shariff Kabunsuan Province
with Cotabato City [formerly First District of Maguindanao with Cotabato
City]), despite the creation of the Province of Shariff Kabunsuan out of such
district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities; (2) MMA Act 201
creating the Province of Shariff Kabunsuan is void; and (3) COMELEC
Resolution No. 7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of

discretion by any tribunal, board, or officer exercising judicial or quasi-
judicial functions.[21]On the other hand, the writ of Mandamus will issue to
compel a tribunal, corporation, board, officer, or person to perform an act
which the law specifically enjoins as a duty.[22] True, the COMELEC did not
issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial
functions.[23] Nor is there a law which specifically enjoins the COMELEC to
exclude from canvassing the votes cast in Cotabato City for representative
of Shariff Kabunsuan Province with Cotabato City. These, however, do not
justify the outright dismissal of the petition in G.R. No. 177597 because
Sema also prayed for the issuance of the writ of Prohibition and we have
long recognized this writ as proper for testing the constitutionality of
election laws, rules, and regulations.[24]

Respondent Dilangalens Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalens proclamation

as winner in the 14 May 2007 elections for representative
of Shariff Kabunsuan Provincewith Cotabato City mooted this petition. This
case does not concern respondent Dilangalens election. Rather, it involves
an inquiry into the validity of COMELEC Resolution No. 7902, as well as
the constitutionality of MMA Act 201 and Section 19, Article VI of RA
9054. Admittedly, the outcome of this petition, one way or another,
determines whether the votes cast in Cotabato City for representative of the
district of Shariff Kabunsuan Province with Cotabato City will be included
in the canvassing of ballots. However, this incidental consequence is no
reason for us not to proceed with the resolution of the novel issues raised
here. The Courts ruling in these petitions affects not only the recently
concluded elections but also all the other succeeding elections for the office
in question, as well as the power of the ARMM Regional Assembly to create
in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by Section 10, Article X
of the Constitution, which provides:

Sec. 10. No province, city, municipality, or barangay may

be created, divided, merged, abolished or its boundary
substantially altered except in accordance with the criteria
established in the local government code and subject to approval
by a majority of the votes cast in a plebiscite in the political units
directly affected.

Thus, the creation of any of the four local government units province, city,
municipality or barangay must comply with three conditions. First, the
creation of a local government unit must follow the criteria fixed in the
Local Government Code. Second, such creation must not conflict with any
provision of the Constitution. Third, there must be a plebiscite in the
political units affected.

There is neither an express prohibition nor an express grant of authority in

the Constitution for Congress to delegate to regional or local legislative
bodies the power to create local government units. However, under its
plenary legislative powers, Congress can delegate to local legislative bodies
the power to create local government units, subject to reasonable standards
and provided no conflict arises with any provision of the Constitution. In
fact, Congress has delegated to provincial boards, and city and municipal
councils, the power to create barangays within their jurisdiction,[25] subject
to compliance with the criteria established in the Local Government Code,
and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, only x x x an
Act of Congress can create provinces, cities or municipalities.[26]

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM

Regional Assembly the power to create provinces, cities, municipalities and
barangays within the ARMM. Congress made the delegation under its
plenary legislative powers because the power to create local government
units is not one of the express legislative powers granted by the Constitution
to regional legislative bodies.[27] In the present case, the question arises
whether the delegation to the ARMM Regional Assembly of the power to
create provinces, cities, municipalities and barangays conflicts with any
provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to

regional legislative bodies of the power to create municipalities and
barangays, provided Section 10, Article X of the Constitution is
followed. However, the creation of provinces and cities is another
matter. Section 5 (3), Article VI of the Constitution provides, Each city with
a population of at least two hundred fifty thousand, or each province, shall
have at least one representative in the House of Representatives. Similarly,
Section 3 of the Ordinance appended to the Constitution provides, Any
province that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be entitled
in the immediately following election to at least one Member x x x.

Clearly, a province cannot be created without a legislative district

because it will violate Section 5 (3), Article VI of the Constitution as well as
Section 3 of the Ordinance appended to the Constitution. For the same
reason, a city with a population of 250,000 or more cannot also be created
without a legislative district. Thus, the power to create a province, or a city
with a population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of less than
250,000 involves the power to create a legislative district because once the
citys population reaches 250,000, the city automatically becomes entitled to
one representative under Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. Thus, the power
to create a province or city inherently involves the power to create a
legislative district.

For Congress to delegate validly the power to create a province or

city, it must also validly delegate at the same time the power to create a
legislative district.The threshold issue then is, can Congress validly delegate
to the ARMM Regional Assembly the power to create legislative districts for
the House of Representatives?The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress

Under the present Constitution, as well as in past[28] Constitutions, the

power to increase the allowable membership in the House of
Representatives, and to reapportion legislative districts, is vested exclusively
in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be

composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.

xxxx

(3) Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a population of
at least two hundred fifty thousand, or each province, shall have at least
one representative.

(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based
on the standards provided in this section. (Emphasis supplied)
 Section 5 (1), Article VI of the Constitution vests in Congress the
power to increase, through a law, the allowable membership in the House of
Representatives.Section 5 (4) empowers Congress to reapportion legislative
districts. The power to reapportion legislative districts necessarily includes
the power to create legislative districts out of existing ones. Congress
exercises these powers through a law that Congress itself enacts, and not
through a law that regional or local legislative bodies enact. The allowable
membership of the House of Representatives can be increased, and new
legislative districts of Congress can be created, only through a national law
passed by Congress. In Montejo v. COMELEC,[29] we held that the power of
redistricting x x x is traditionally regarded as part of the power (of Congress)
to make laws, and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create

or reapportion legislative districts is logical. Congress is a national
legislature and any increase in its allowable membership or in its incumbent
membership through the creation of legislative districts must be embodied in
a national law. Only Congress can enact such a law. It would be anomalous
for regional or local legislative bodies to create or reapportion legislative
districts for a national legislature like Congress. An inferior legislative body,
created by a superior legislative body, cannot change the membership of the
superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its
Regional Assembly under its organic act, did not divest Congress of its
exclusive authority to create legislative districts. This is clear from the
Constitution and the ARMM Organic Act, as amended. Thus, Section 20,
Article X of the Constitution provides:
 SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.

Nothing in Section 20, Article X of the Constitution authorizes

autonomous regions, expressly or impliedly, to create or reapportion
legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the

ARMM Organic Act, provides, The Regional Assembly may exercise
legislative power x x x except on the following matters: x x
x (k) National elections. x x x. Since the ARMM Regional Assembly has
no legislative power to enact laws relating to national elections, it cannot
create a legislative district whose representative is elected in national
elections. Whenever Congress enacts a law creating a legislative district, the
first representative is always elected in the next national elections from the
effectivity of the law.[30]
Indeed, the office of a legislative district representative to Congress is
a national office, and its occupant, a Member of the House of
Representatives, is a national official.[31] It would be incongruous for a
regional legislative body like the ARMM Regional Assembly to create a
national office when its legislative powers extend only to its regional
territory. The office of a district representative is maintained by national
funds and the salary of its occupant is paid out of national funds. It is a self-
evident inherent limitation on the legislative powers of every local or
regional legislative body that it can only create local or regional offices,
respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is

to allow its legislative powers to operate outside the ARMMs territorial
jurisdiction. This violates Section 20, Article X of the Constitution which
expressly limits the coverage of the Regional Assemblys legislative
powers [w]ithin its territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan,

recognized the exclusive nature of Congress power to create or reapportion
legislative districts by abstaining from creating a legislative district for
Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing

legislative district, which includes Cotabato City as a part thereof, shall
remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district

because the Constitution mandates that each province shall have at least one
representative.Thus, the creation of the Province of Shariff Kabunsuan
without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI
of the Constitution, which provides:
 Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at
least one representative. (Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose

population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at
least one Member or such number of Members as it may be entitled to
on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of
which such new province was created or where the city, whose population
has so increased, is geographically located shall be correspondingly
adjusted by the Commission on Elections but such adjustment shall not be
made within one hundred and twenty days before the election. (Emphasis
supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan,
created on 29 October 2006, is automatically entitled to one member in the
House of Representatives in the 14 May 2007 elections. As further support
for her stance, petitioner invokes the statement in Felwa that when a
province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute which cannot
provide otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment.

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No.
4695 (RA 4695), creating the provinces of Benguet, Mountain Province,
Ifugao, and Kalinga-Apayao and providing for congressional representation
in the old and new provinces, was unconstitutional for creati[ng]
congressional districts without the apportionment provided in the
Constitution. The Court answered in the negative, thus:

The Constitution ordains:

The House of Representatives shall be composed of

not more than one hundred and twenty Members
who shall be apportioned among the several
provinces as nearly as may be according to the
number of their respective inhabitants, but each
province shall have at least one Member. The
Congress shall by law make an apportionment within
three years after the return of every enumeration, and
not otherwise. Until such apportionment shall have
been made, the House of Representatives shall have
the same number of Members as that fixed by law
for the National Assembly, who shall be elected by
the qualified electors from the present Assembly
districts. Each representative district shall comprise
as far as practicable, contiguous and compact
territory.
Pursuant to this Section, a representative district may come
into existence: (a) indirectly, through the creation of a
province for each province shall have at least one member in
the House of Representatives; or (b) by direct creation of
several representative districts within a province. The
requirements concerning the apportionment of representative
districts and the territory thereof refer only to the second method
of creation of representative districts, and do not apply to those
incidental to the creation of provinces, under the first method.
This is deducible, not only from the general tenor of the provision
above quoted, but, also, from the fact that the apportionment
therein alluded to refers to that which is made by an Act of
 Congress. Indeed, when a province is created by statute, the
corresponding representative district, comes into existence
neither by authority of that statute which cannot provide
otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or
other conditions under which a province may be created, except, perhaps,
if the consequence thereof were to exceed the maximum of 120
representative districts prescribed in the Constitution, which is not the
effect of the legislation under consideration. As a matter of fact, provinces
have been created or subdivided into other provinces, with the consequent
creation of additional representative districts, without complying with the
aforementioned requirements.[32] (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it

validly created legislative districts indirectly through a special law enacted
by Congresscreating a province and (2) the creation of the legislative
districts will not result in breaching the maximum number of legislative
districts provided under the 1935 Constitution. Felwa does not apply to the
present case because in Felwa the new provinces were created by a national
law enacted by Congress itself. Here, the new province was created merely
by a regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by

Congress does not emanate alone from Congress power to reapportion
legislative districts, but also from Congress power to create provinces which
cannot be created without a legislative district. Thus, when a province is
created, a legislative district is created by operation of the Constitution
because the Constitution provides that each province shall have at least
one representative in the House of Representatives. This does not detract
from the constitutional principle that the power to create legislative districts
belongs exclusively to Congress. It merely prevents any other legislative
body, except Congress, from creating provinces because for a legislative
body to create a province such legislative body must have the power to
create legislative districts. In short, only an act of Congress can trigger the
creation of a legislative district by operation of the Constitution. Thus, only
Congress has the power to create, or trigger the creation of, a legislative
district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative

district to Shariff Kabunsuan upon its creation, this will leave Cotabato City
as the lone component of the first legislative district of
Maguindanao. However, Cotabato City cannot constitute a legislative
district by itself because as of the census taken in 2000, it had a population
of only 163,849. To constitute Cotabato City alone as the surviving first
legislative district of Maguindanao will violate Section 5 (3), Article VI of
the Constitution which requires that [E]ach city with a population of at least
two hundred fifty thousand x x x, shall have at least one representative.

Second. Semas theory also undermines the composition and

independence of the House of Representatives. Under Section 19,[33] Article
VI of RA 9054, the ARMM Regional Assembly can create provinces and
cities within the ARMM with or without regard to the criteria fixed in
Section 461 of RA 7160, namely:minimum annual income of P20,000,000,
and minimum contiguous territory of 2,000 square kilometers or minimum
population of 250,000.[34] The following scenarios thus become distinct
possibilities:

(1) An inferior legislative body like the ARMM Regional

Assembly can create 100 or more provinces and thus increase
the membership of a superior legislative body, the House
of Representatives, beyond the maximum limit of 250 fixed in
the Constitution (unless a national law provides otherwise);
 (2) The proportional representation in the House
of Representatives based on one representative for at least every
250,000 residents will be negated because the ARMM Regional
Assembly need not comply with the requirement in Section
461(a)(ii) of RA 7160 that every province created must have a
population of at least 250,000; and

(3) Representatives from the ARMM provinces can

become the majority in the House of Representatives through
the ARMM Regional Assemblys continuous creation of
provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in

G.R. No. 177597 highlights the absurdity of Semas position that the ARMM
Regional Assembly can create provinces:

Justice Carpio:
So, you mean to say [a] Local Government can create legislative
district[s] and pack Congress with their own representatives [?]

Atty. Vistan II:[35]

Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create
x x x provinces x x x and, therefore, they can have thirty-five (35)
new representatives in the House of Representatives without
Congress agreeing to it, is that what you are saying? That can be
done, under your theory[?]

Atty. Vistan II:

 Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five
(35) new provinces, there may be x x x [only] one hundred
thousand (100,000) [population], x x x, and they will each have
one representative x x x to Congress without any national law, is
that what you are saying?

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we

are saying.

xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces,
sen[d] one thousand (1000) representatives to the House of
Representatives without a national law[,] that is legally
possible, correct?

Atty. Vistan II:

Yes, Your Honor.[36] (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the

provisions in Article X on regional autonomy,[37] nor Congress in enacting
RA 9054, envisioned or intended these disastrous consequences that
certainly would wreck the tri-branch system of government under our
Constitution. Clearly, the power to create or reapportion legislative districts
cannot be delegated by Congress but must be exercised by Congress
itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative

districts, not the regional assemblies. Section 3 of the Ordinance to the
Constitution which states, [A]ny province that may hereafter be created x x x
shall be entitled in the immediately following election to at least one
Member, refers to a province created by Congress itself through a national
law. The reason is that the creation of a province increases the actual
membership of the House of Representatives, an increase that only Congress
can decide. Incidentally, in the present 14th Congress, there are
219[38] district representatives out of the maximum 250 seats in the House of
Representatives. Since party-list members shall constitute 20 percent of total
membership of the House, there should at least be 50 party-list seats
available in every election in case 50 party-list candidates are proclaimed
winners. This leaves only 200 seats for district representatives, much less
than the 219 incumbent district representatives. Thus, there is a need now for
Congress to increase by law the allowable membership of the House, even
before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over

the Constitution. Section 20, Article X of the Constitution expressly
provides that the legislative powers of regional assemblies are
limited [w]ithin its territorial jurisdiction and subject to the provisions
of the Constitution and national laws, x x x.The Preamble of the ARMM
Organic Act (RA 9054) itself states that the ARMM Government is
established within the framework of the Constitution. This follows Section
15, Article X of the Constitution which mandates that the ARMM shall be
created x x x within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the
Philippines.

The present case involves the creation of a local government unit that
necessarily involves also the creation of a legislative district. The Court will
not pass upon the constitutionality of the creation of municipalities and
barangays that does not comply with the criteria established in Section 461
of RA 7160, as mandated in Section 10, Article X of the Constitution,
because the creation of such municipalities and barangays does not involve
the creation of legislative districts. We leave the resolution of this issue to an
appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it

grants to the ARMM Regional Assembly the power to create provinces and
cities, is void for being contrary to Section 5 of Article VI and Section 20 of
Article X of the Constitution, as well as Section 3 of the Ordinance
appended to the Constitution. Only Congress can create provinces and cities
because the creation of provinces and cities necessarily includes the creation
of legislative districts, a power only Congress can exercise under Section 5,
Article VI of the Constitution and Section 3 of the Ordinance appended to
the Constitution. The ARMM Regional Assembly cannot create a province
without a legislative district because the Constitution mandates that every
province shall have a legislative district. Moreover, the ARMM Regional
Assembly cannot enact a law creating a national office like the office of a
district representative of Congress because the legislative powers of the
ARMM Regional Assembly operate only within its territorial jurisdiction as
provided in Section 20, Article X of the Constitution. Thus, we rule that
MMA Act 201, enacted by the ARMM Regional Assembly and creating the
Province of Shariff Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902,

preserving the geographic and legislative district of the First District of
Maguindanao with Cotabato City, is valid as it merely complies with Section
5 of Article VI and Section 20 of Article X of the Constitution, as well as
Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No.

9054 UNCONSTITUTIONAL insofar as it grants to the Regional
Assembly of the Autonomous Region in Muslim Mindanao the power to
create provinces and cities. Thus, we declare VOID Muslim Mindanao
Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902
is VALID.

Let a copy of this ruling be served on the President of the Senate and
the Speaker of the House of Representatives.

SO ORDERED.

NPC DRIVERS AND G.R. No. 156208

MECHANICS ASSOCIATION,
(NPC DAMA), represented by Its
President ROGER S. SAN JUAN, Present:
SR., NPC EMPLOYEES &
WORKERS UNION (NEWU) PANGANIBAN, CJ
NORTHERN LUZON REGIONAL Chairperson,
CENTER, represented by its YNARES-SANTIAGO,
Regional President JIMMY D. AUSTRIA-MARTINEZ,
SALMAN, in their own individual CALLEJO, SR., and
capacities and in behalf of the CHICO-NAZARIO, JJ.
members of the associations and all
affected officers and employees of
National Power Corporation (NPC),
ZOL D. MEDINA, NARCISO M.
MAGANTE, VICENTE B. CIRIO,
JR., NECITAS B. CAMAMA, in
their individual capacities as
employees of National Power
Corporation,
Petitioners,

- versus -

THE NATIONAL POWER

CORPORATION (NPC),
NATIONAL POWER BOARD OF
DIRECTORS (NPB), JOSE ISIDRO
N. CAMACHO as Chairman of the
National Power Board of Directors
(NPB), ROLANDO S. QUILALA, as
President Officer-in-charge/CEO of
National Power Corporation and
Member of National Power Board,
and VINCENT S. PEREZ, JR.,
EMILIA T. BONCODIN, MARIUS
P. CORPUS, RUBEN S. REINOSO,
JR., GREGORY L. DOMINGO and Promulgated:
NIEVES L. OSORIO,
Respondents.
September 26, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

Before Us is a special civil action for Injunction to enjoin public

respondents from implementing the National Power Board (NPB)
Resolutions No. 2002-124 and No. 2002-125, both dated 18 November
2002, directing, among other things, the termination of all employees of the
National Power Corporation (NPC) on 31 January 2003 in line with the
restructuring of the NPC.

On 8 June 2001, Republic Act No. 9136, otherwise known as the

Electric Power Industry Reform Act of 2001 (EPIRA Law), was approved
and signed into law by President Gloria Macapagal-Arroyo, and took effect
on 26 June 2001. Section 2(i) and Section 3 of the EPIRA Law states:

Section 2. Declaration of Policy. It is hereby declared the policy of the

State:

xxxx

(i) To provide for an orderly and transparent privatization of the assets and
liabilities of the National Power Corporation (NPC);

xxxx

Section 3. Scope. This Act shall provide a framework for the restructuring
of the electric power industry, including the privatization of the assets of
NPC, the transition to the desired competitive structure, and the definition
of the responsibilities of the various government agencies and private
entities.[1]

Under the EPIRA Law,[2] a new National Power Board of Directors

was constituted composed of the Secretary of Finance as Chairman, with the
Secretary of Energy, the Secretary of Budget and Management, the
Secretary of Agriculture, the Director-General of the National Economic and
Development Authority, the Secretary of Environment and Natural
Resources, the Secretary of Interior and Local Government, the Secretary of
the Department of Trade and Industry, and the President of the National
Power Corporation as members.
 On 27 February 2002, the Secretary of the Department of Energy
(DOE) promulgated the Implementing Rules and Regulations (IRR) of the
EPIRA Law, pursuant to Section 77[3] thereof. Said IRR were approved by
the Joint Congressional Power Commission on even date. Meanwhile, also
in pursuant to the provisions of the EPIRA Law, the DOE created the
Energy Restructuring Steering Committee (Restructuring Committee) to
manage the privatization and restructuring of the NPC, the National
Transmission Corporation (TRANSCO), and the Power Sector Assets and
Liabilities Corporation (PSALM).

To serve as the overall organizational framework for the realigned

functions of the NPC mandated under the EPIRA Law, the Restructuring
Committee proposed a new NPC Table of Organization which was approved
by the NPB through NPB Resolution No. 2002-53 dated 11 April
2002. Likewise, the Restructuring Committee reviewed the proposed 2002
NPC Restructuring Plan and assisted in the implementation of Phase I
(Realignment) of said Plan, and thereafter recommended to the NPB for
approval the adoption of measures pertaining to the separation and hiring of
NPC personnel. The NPB, taking into consideration the recommendation of
the Restructuring Committee, thus amended the Restructuring Plan approved
under NPB Resolution No. 2002-53.

On 18 November 2002, pursuant to Section 63[4] of the EPIRA Law

and Rule 33[5] of the IRR, the NPB passed NPB Resolution No. 2002-124
which provided for the Guidelines on the Separation Program of the NPC
and the Selection and Placement of Personnel in the NPC Table of
Organization. Under said Resolution, all NPC personnel shall be legally
terminated on 31 January 2003, and shall be entitled to separation
benefits. On the same day, the NPB approved NPB Resolution No. 2002-
125, whereby a Transition Team was constituted to manage and implement
the NPCs Separation Program.

In a Memorandum dated 21 November 2002, the NPC OIC-President

and CEO Rolando S. Quilala circulated the assailed Resolutions and directed
the concerned NPC officials to disseminate and comply with said
Resolutions and implement the same within the period provided for in the
timetable set in NPB Resolution No. 2002-125. As a result thereof,
Mr. Paquito F. Garcia, Manager HRSD and Resources and Administration
Coordinator of NPC, circulated a Memorandum dated 22 November 2002 to
all NPC officials and employees providing for a checklist of the documents
required for securing clearances for the processing of separation benefits of
all employees who shall be terminated under the Restructuring Plan.

Contending that the assailed NPB Resolutions are void and without
force and effect, herein petitioners, in their individual and representative
capacities, filed the present Petition for Injunction to restrain respondents
from implementing NPB Resolutions No. 2002-124 and No. 2002-125. In
support thereof, petitioners invoke Section 78 of the EPIRA Law, to wit:
Section 78. Injunction and Restraining Order. The implementation
of the provisions of this Act shall not be restrained or enjoined except by
an order issued by the Supreme Court of the Philippines.

In assailing the validity of NPB Resolutions No. 2002-124 and No.

2002-125, petitioners maintain that said Resolutions were not passed and
issued by a majority of the members of the duly constituted Board of
Directors since only three of its members, as provided under Section 48[6] of
the EPIRA Law, were present, namely: DOE Secretary Vincent S. Perez, Jr.;
Department of Budget and Management Secretary Emilia T. Boncodin; and
NPC OIC-President Rolando S. Quilala.According to petitioners, the other
four members who were present at the meeting and signed the Resolutions
were not the secretaries of their respective departments but were merely
representatives or designated alternates of the officials who were named
under the EPIRA Law to sit as members of the NPB. Petitioners claim that
the acts of these representatives are violative of the well-settled principle
that delegated power cannot be further delegated. Thus, petitioners conclude
that the questioned Resolutions have been illegally issued as it were not
issued by a duly constituted board since no quorum existed because only
three of the nine members, as provided under Section 48 of the EPIRA Law,
were present and qualified to sit and vote.

It is petitioners submission that even assuming arguendo that there

was no undue delegation of power to the four representatives who signed the
assailed Resolutions, said Resolutions cannot still be given legal effect
because the same did not comply with the mandatory requirement of
endorsement by the Joint Congressional Power Commission and approval of
the President of the Philippines, as provided under Section 47 of the EPIRA
Law which states that:
 Section 47. NPC Privatization. Except for the assets of SPUG, the
generation assets, real estate, and other disposable assets as well as IPP
contracts of NPC shall be privatized in accordance with this Act. Within
six (6) months from effectivity of this Act, the PSALM Corp. shall submit
a plan for the endorsement by the Joint Congressional Power Commission
and the approval of the President of the Philippines, on the total
privatization of the generation assets, real estate, other disposable assets as
well as existing IPP contracts of NPC and thereafter, implement the same,
in accordance with the following guidelines, except as provided for in
paragraph (f) herein: x x x.

Petitioners insist that if ever there exists a valid wholesale abolition of

their positions and their concomitant separation form the service, such a
process is an integral part of privatization and restructuring as defined under
the EPIRA Law and, therefore, must comply with the above-quoted
provision requiring the endorsement of the Joint Congressional Power
Commission and the approval of the President of the
Philippines. Furthermore, petitioner highlight the fact that said Resolutions
will have an adverse effect on about 5,648 employees of the NPC and will
result in the displacement of some 2,370 employees, which, petitioners
argue, is contrary to the mandate of the Constitution to promote full
employment and security of tenure.

Respondents, on the other hand, uphold the validity of the assailed

Resolutions by arguing that while it is true that four members of the National
Power Board of Directors, particularly the respective Secretaries of the
Department of Interior and Local Government, the Department of Trade and
Industry, and the Department of Finance, as well as the Director-General of
the National Economic and Development Authority, were not the actual
signatories in NPB Resolutions No. 2002-124 and No. 2002-125, they were,
however, ably represented by their respective alternates. Respondents claim
that the validity of such administrative practice whereby an authority is
exercised by persons or subordinates appointed by the responsible official
has long been settled. Respondents further contend that Section 48 of the
EPIRA Law does not in any way prohibit any member of the NPB from
authorizing his representative to sign resolutions adopted by the Board.

From the arguments put forward by herein parties, it is evident that

the pivotal issue to be resolved in this Petition for Injunction is whether or
not NPB Resolutions No. 2002-124 and No. 2002-125 were properly
enacted. It is petitioners contention that the failure of the four specifically
identified department heads[7]under Section 48 of the EPIRA Law to
personally approve and sign the assailed Resolutions invalidates the
adoption of said Resolutions. Petitioners maintain that there was undue
delegation of delegated power when only the representatives of certain
members of the NPB attended the board meetings and passed and signed the
questioned Resolutions.

We agree with petitioners. In enumerating under Section 48 those who

shall compose the National Power Board of Directors, the legislature has
vested upon these persons the power to exercise their judgment and
discretion in running the affairs of the NPC. Discretion may be defined as
the act or the liberty to decide according to the principles of justice and ones
ideas of what is right and proper under the circumstances, without
willfulness or favor.[8] Discretion, when applied to public functionaries,
means a power or right conferred upon them by law of acting officially in
certain circumstances, according to the dictates of their own judgment and
conscience, uncontrolled by the judgment or conscience of others.[9] It is to
be presumed that in naming the respective department heads as members of
the board of directors, the legislature chose these secretaries of the various
executive departments on the basis of their personal qualifications and
acumen which made them eligible to occupy their present positions as
department heads. Thus, the department secretaries cannot delegate their
duties as members of the NPB, much less their power to vote and approve
board resolutions, because it is their personal judgment that must be
exercised in the fulfillment of such responsibility.

There is no question that the enactment of the assailed Resolutions

involves the exercise of discretion and not merely a ministerial act that could
be validly performed by a delegate, thus, the rule enunciated in the case
of Binamira v. Garrucho[10] is relevant in the present controversy, to wit:

An officer to whom a discretion is entrusted cannot delegate it to

another, the presumption being that he was chosen because he was deemed
fit and competent to exercise that judgment and discretion, and unless the
power to substitute another in his place has been given to him, he cannot
delegate his duties to another.

In those cases in which the proper execution of the office requires,

on the part of the officer, the exercise of judgment or discretion, the
presumption is that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and, unless power to
 substitute another in his place has been given to him, he cannot delegate
his duties to another.

Respondents assertion to the contrary is not tenable. The ruling in the

case cited by respondents to support their contention is not applicable in the
case at bar.While it is true that the Court has determined in the case
of American Tobacco Company v. Director of Patents[11] that a delegate may
exercise his authority through persons he appoints to assist him in his
functions, it must be stressed that the Court explicitly stated in the same case
that said practice is permissible only when the judgment and
discretion finally exercised are those of the officer authorized by
law. According to the Court, the rule that requires an administrative officer
to exercise his own judgment and discretion does not preclude him from
utilizing, as a matter of practical administrative procedure, the aid of
subordinates, so long as it is the legally authorized official who makes
the final decision through the use of his own personal judgment.

In the case at bar, it is not difficult to comprehend that in approving

NPB Resolutions No. 2002-124 and No. 2002-125, it is the representatives
of the secretaries of the different executive departments and not the
secretaries themselves who exercised judgment in passing the assailed
Resolution, as shown by the fact that it is the signatures of the respective
representatives that are affixed to the questioned Resolutions. This, to our
mind, violates the duty imposed upon the specifically enumerated
department heads to employ their own sound discretion in exercising the
corporate powers of the NPC. Evidently, the votes cast by these mere
representatives in favor of the adoption of the said Resolutions must not be
considered in determining whether or not the necessary number of votes was
garnered in order that the assailed Resolutions may be validly
enacted. Hence, there being only three valid votes cast out of the nine board
members, namely those of DOE Secretary Vincent S. Perez, Jr.; Department
of Budget and Management Secretary Emilia T. Boncodin; and NPC OIC-
President Rolando S. Quilala, NPB Resolutions No. 2002-124 and No. 2002-
125 are void and are of no legal effect.

Having determined that the assailed Resolutions are void as they lack
the necessary number of votes for their adoption, We no longer deem it
necessary to pass upon the other issues raised in the instant petition
 WHEREFORE, premises considered, National Power Board
Resolutions No. 2002-124 and No. 2002-125 are hereby
declared VOID and WITHOUT LEGAL EFFECT. The Petition for
Injunction is hereby GRANTED and respondents are hereby ENJOINED
from implementing said NPB Resolutions No. 2002-124 and No. 2002-125.

SO ORDERED.