EN BANC submitted, private respondent appears to be charged in the United with the provisions of the extradition treaty and
visions of the extradition treaty and our extradition
G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of
Manila, Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-
vis the vast and overwhelming powers of government. His only
guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need.
The Court is now called to decide whether to uphold a citizen's
basic due process rights, or the government's ironclad duties under
a treaty. The bugle sounds and this Court must once again act as
the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual
backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation
under the Constitution; the mutual concern for the suppression of
crime both in the state where it was committed and the state
where the criminal may have escaped; the extradition treaty with
the Republic of Indonesia and the intention of the Philippines to
enter into similar treaties with other interested countries; and the
need for rules to guide the executive department and the courts in
the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M.
Drilon, representing the Government of the Republic of the
Philippines, signed in Manila the "Extradition Treaty Between the
Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter referred
to as the RP-US Extradition Treaty). The Senate, by way of
Resolution No. 11, expressed its concurrence in the ratification of
said treaty. It also expressed its concurrence in the Diplomatic
Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition
request upon certification by the principal diplomatic or consular
officer of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs U.S. Note Verbale No. 0522
containing a request for the extradition of private respondent
Mark Jimenez to the United States. Attached to the Note Verbale
were the Grand Jury Indictment, the warrant of arrest issued by
the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers
States with violation of the following provisions of the United
States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the
United States; two [2] counts; Maximum Penalty — 5 years on
each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;
Maximum Penalty — 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts;
Maximum Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-
three [33] counts; Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249
designating and authorizing a panel of attorneys to take charge of
and to handle the case pursuant to Section 5(1) of Presidential
Decree No. 1069. Accordingly, the panel began with the "technical
evaluation and assessment" of the extradition request and the
documents in support thereof. The panel found that the "official
English translation of some documents in Spanish were not
attached to the request and that there are some other matters
that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents,
private respondent, through counsel, wrote a letter dated July 1,
1999 addressed to petitioner requesting copies of the official
extradition request from the U.S. Government, as well as all
documents and papers submitted therewith; and that he be given
ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also
requested that the proceedings on the matter be held in abeyance
in the meantime.
Later, private respondent requested that preliminary, he be given
at least a copy of, or access to, the request of the United States
Government, and after receiving a copy of the Diplomatic Note, a
period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner,
in a reply-letter dated July 13, 1999 (but received by private
respondent only on August 4, 1999), denied the foregoing requests
for the following reasons:
1. We find it premature to furnish you with copies of the
extradition request and supporting documents from the United
States Government, pending evaluation by this Department of the
sufficiency of the extradition documents submitted in accordance
law. Article 7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted
shall be received and admitted as evidence. Evidentiary
requirements under our domestic law are also set forth in Section
4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents
is not a preliminary investigation nor akin to preliminary
investigation of criminal cases. We merely determine whether the
procedures and requirements under the relevant law and treaty
have been complied with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all criminal
prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the
person sought to be extradited will be furnished by the court with
copies of the petition, request and extradition documents and this
Department will not pose any objection to a request for ample
time to evaluate said documents.
2. The formal request for extradition of the United States contains
grand jury information and documents obtained through grand
jury process covered by strict secrecy rules under United States
law. The United States had to secure orders from the concerned
District Courts authorizing the United States to disclose certain
grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr.
Jimenez. Any further disclosure of the said information is not
authorized by the United States District Courts. In this particular
extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the
subject information. This Department's denial of your request is
consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the
interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No.
1069 is the counsel of the foreign governments in all extradition
requests.
3. This Department is not in a position to hold in abeyance
proceedings in connection with an extradition request. Article 26
of the Vienna Convention on the Law of Treaties, to which we are a
party provides that "[E]very treaty in force is binding upon the
parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously. (pp. 77-
78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private
respondent filed with the Regional Trial Court of the National
Capital Judicial Region a petition against the Secretary of Justice,
the Secretary of Foreign Affairs, and the Director of the National
Bureau of Investigation, for mandamus (to compel herein
petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an
opportunity to comment on, or oppose, the extradition request,
and thereafter to evaluate the request impartially, fairly and
objectively); certiorari(to set aside herein petitioner's letter dated
July 13, 1999); and prohibition (to restrain petitioner from
considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and
the Director of the NBI from performing any act directed to the
extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a
writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-
94684 and thereafter raffled to Branch 25 of said regional trial
court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9,
1999. Petitioner, who appeared in his own behalf, moved that he
be given ample time to file a memorandum, but the same was
denied.
On August 10, 1999, respondent judge issued an order dated the
previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely:
the Secretary of Justice, the Secretary of Foreign Affairs and the
Director of the National Bureau of Investigation, their agents
and/or representatives to maintain the status quo by refraining
from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to
the United States, for a period of twenty (20) days from service on
respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
The hearing as to whether or not this Court shall issue the
preliminary injunction, as agreed upon by the counsels for the
parties herein, is set on August 17, 1999 at 9:00 o'clock in the
morning. The respondents are, likewise, ordered to file their
written comment and/or opposition to the issuance of a
Preliminary Injunction on or before said date.
SO ORDERED. (pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing
that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING
THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM
COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM
REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL
EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING
PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON,
OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT
OF MANDAMUS IN THE PETITION FOR MANDAMUS,
CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS
TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM
PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY
AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION
IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY. (pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file
his comment. Also issued, as prayed for, was a temporary
restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until
further orders from this Court, You, Respondent Judge Ralph C.
Lantion, your agents, representatives or any person or persons
acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999
issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice,
Supreme Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after
which the parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and
substantive issues are patent. However, a review of these issues as
well as the extensive arguments of both parties, compel us to
delineate the focal point raised by the pleadings: During the
evaluation stage of the extradition proceedings, is private
respondent entitled to the two basic due process rights of notice
and hearing? An affirmative answer would necessarily render the
proceedings at the trial court, moot and academic (the issues of
which are substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the TRO
issued by this Court dated August 24, 1999, thus allowing
petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily,
in the event that private respondent is adjudged entitled to basic
due process rights at the evaluation stage of the extradition
proceedings, would this entitlement constitute a breach of the
legal commitments and obligations of the Philippine Government
under the RP-US Extradition Treaty? And assuming that the result
would indeed be a breach, is there any conflict between private
respondent's basic due process rights and the provisions of the RP-
US Extradition Treaty?
The issues having transcendental importance, the Court has
elected to go directly into the substantive merits of the case,
brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety
of the filing of the petition therein, and of the issuance of the TRO
of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition
procedure. The RP-US Extradition Treaty which was executed only
on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the
Philippine Extradition Law. Section 2(a) thereof defines extradition
as "the removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree
relevant to the instant case which involves a charged and not
convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting
State, addressed to the Secretary of Foreign Affairs, and shall be
accompanied by:
1. The original or an authentic copy of the criminal charge and the
warrant of arrest issued by the authority of the Requesting State
having jurisdiction over the matter, or some other instruments
having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the
fullest particulars as to the name and identity of the accused, his
whereabouts in the Philippines, if known, the acts or omissions
complained of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the contents of
said law, and the designation or description of the offense by the
law, sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the
Secretary of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant
treaty or convention, he shall forward the request together with
the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to
take charge of the case.”
The above provision shows only too clearly that the executive
authority given the task of evaluating the sufficiency of the request
and the supporting documents is the Secretary of Foreign Affairs.
What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US
Extradition Treaty, the executive authority must ascertain whether
or not the request is supported by:
1. Documents, statements, or other types of information which
describe the identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural
history of the case;
3. A statement of the provisions of the law describing the essential
elements of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment
for the offense;
5. A statement of the provisions of the law describing any time
limit on the prosecution or the execution of punishment for the
offense;
6. Documents, statements, or other types of information specified
in paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State,
would provide probable cause for his arrest and committal for trial
if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or
other competent authority; and
9. A copy of the charging document. (Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see
to it that the accompanying documents received in support of the
request had been certified by the principal diplomatic or consular
officer of the Requested State resident in the Requesting State
(Embassy Note No. 052 from U. S. Embassy; Embassy Note No.
951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that
"[e]xtradition shall not be granted if the executive authority of the
Requested State determines that the request is politically
motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the
extradition request and its supporting documents are sufficient
and complete in form and substance, he shall deliver the same to
the Secretary of Justice, who shall immediately designate and
authorize an attorney in his office to take charge of the case
(Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated
shall then file a written petition with the proper regional trial court
of the province or city, with a prayer that the court take the
extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the
petition for extradition, shall, as soon as practicable, issue an order
summoning the prospective extraditee to appear and to answer
the petition on the day and hour fixed in the order. The judge may
issue a warrant of arrest if it appears that the immediate arrest and
temporary detention of the accused will best serve the ends of
justice (Paragraph [1], Section 6, ibid.), particularly to prevent the
flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the
extradition proceeding is criminal, civil, or a special proceeding.
Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of
Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply. During the
hearing, Section 8 of the Decree provides that the attorney having
charge of the case may, upon application by the Requesting State,
represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision
granting the extradition and giving the reasons therefor upon a
showing of the existence of a prima facie case, or dismiss the
petition (Section 10, ibid.). Said decision is appealable to the Court
of Appeals, whose decision shall be final and immediately
executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall
apply in the aforementioned appeal, except for the required 15-
day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned
in the petition is extraditable based on the application of the dual
criminality rule and other conditions mentioned in Article 2 of the
RP-US Extradition Treaty. The trial court also determines whether
or not the offense for which extradition is requested is a political
one (Paragraph [1], Article 3, RP-US Extradition Treaty).
With the foregoing abstract of the extradition proceedings as
backdrop, the following query presents itself: What is the nature of
the role of the Department of Justice at the evaluation stage of the
extradition proceedings?
A strict observance of the Extradition Law indicates that the only
duty of the Secretary of Justice is to file the extradition petition
after the request and all the supporting papers are forwarded to
him by the Secretary of Foreign Affairs. It is the latter official who is
authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or
that the offense is a military offense which is not punishable under
non-military penal legislation. Ipso facto, as expressly provided in
Paragraph [1], Section 5 of the Extradition Law, the Secretary of
Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it
would appear that there was failure to abide by the provisions of
Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign
Affairs on June 17, 1999, the following day or less than 24 hours
later, the Department of Justice received the request, apparently
without the Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying documents.
The statement of an assistant secretary at the Department of
Foreign Affairs that his Department, in this regard, is merely acting
as a post office, for which reason he simply forwarded the request
to the Department of Justice, indicates the magnitude of the error
of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon
itself to determine the completeness of the documents and to
evaluate the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RP-US
Extradition Treaty. Petitioner ratiocinates in this connection that
although the Department of Justice had no obligation to evaluate
the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn,
August 31, 1999, pp. 24-25). Notably, it was also at this stage
where private respondent insisted on the following; (1) the right to
be furnished the request and the supporting papers; (2) the right
to be heard which consists in having a reasonable period of time to
oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to
the request.
The two Departments seem to have misread the scope of their
duties and authority, one abdicating its powers and the other
enlarging its commission. The Department of Foreign Affairs,
moreover, has, through the Solicitor General, filed a manifestation
that it is adopting the instant petition as its own, indirectly
conveying the message that if it were to evaluate the extradition
request, it would not allow private respondent to participate in the
process of evaluation.
Plainly then, the record cannot support the presumption of
regularity that the Department of Foreign Affairs thoroughly
reviewed the extradition request and supporting documents and
that it arrived at a well-founded judgment that the request and its
annexed documents satisfy the requirements of law. The Secretary
of Justice, eminent as he is in the field of law, could not privately
review the papers all by himself. He had to officially constitute a
panel of attorneys. How then could the DFA Secretary or his
undersecretary, in less than one day, make the more authoritative
determination?
The evaluation process, just like the extradition proceedings
proper, belongs to a class by itself. It is sui generis. It is not a
criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At such stage, the
executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition
papers; (b) to outrightly deny the request if on its face and on the
face of the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one
which is not punishable under non-military penal legislation (tsn,
August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3,
RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast
to a proceeding conducted in the exercise of an administrative
body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a)
taking and evaluation of evidence; (b) determining facts based
upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved (De Leon, Administrative
Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United
States, 304 U.S. 1). Inquisitorial power, which is also known as
examining or investigatory power, is one or the determinative
powers of an administrative body which better enables it to
exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the activities, of
persons or entities coming under its jurisdiction (Ibid., p. 27), or to
require disclosure of information by means or accounts, records,
reports, testimony of witnesses, production of documents, or
otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and
analyzing evidence, which is a useful aid or tool in an
administrative agency's performance of its rule-making or quasi-
judicial functions. Notably, investigation is indispensable to
prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court
had occasion to rule on the functions of an investigatory body with
the sole power of investigation. It does not exercise judicial
functions and its power is limited to investigating the facts and
making findings in respect thereto. The Court laid down the test of
determining whether an administrative body is exercising judicial
functions or merely investigatory functions: Adjudication signifies
the exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only purpose
for investigation is to evaluate evidence submitted before it based
on the facts and circumstances presented to it, and if the agency is
not authorized to make a final pronouncement affecting the
parties, then there is an absence of judicial discretion and
judgment.
The above description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no
power to adjudicate in regard to the rights and obligations of both
the Requesting State and the prospective extraditee. Its only
power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to
be the basis of an extradition petition. Such finding is thus merely
initial and not final. The body has no power to determine whether
or not the extradition should be effected. That is the role of the
court. The body's power is limited to an initial finding of whether
or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary
investigations, the evaluation procedure is characterized by certain
peculiarities. Primarily, it sets into motion the wheels of the
extradition process. Ultimately, it may result in the deprivation of
liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the
prospective extraditee pending the submission of the request. This
is so because the Treaty provides that in case of urgency, a
contracting party may request the provisional arrest of the person
sought pending presentation of the request (Paragraph [1], Article
9, RP-US Extradition Treaty), but he shall be automatically
discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20
days after which the arrested person could be discharged (Section
20[d]). Logically, although the Extradition Law is silent on this
respect, the provisions only mean that once a request is forwarded
to the Requested State, the prospective extraditee may be
continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only
be discharged if no request is submitted. Practically, the purpose of
this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee
during the pendency of the extradition petition in court (Section 6,
Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's
liberty as early as during the evaluation stage. It is not only an
imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the
evaluation process is akin to an administrative agency conducting
an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or
commences the procedure for, and ultimately, the deprivation of
liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo).
In essence, therefore, the evaluation process partakes of the
nature of a criminal investigation. In a number of cases, we had
occasion to make available to a respondent in an administrative
case or investigation certain constitutional rights that are ordinarily
available only in criminal prosecutions. Further, as pointed out by
Mr. Justice Mendoza during the oral arguments, there are rights
formerly available only at the trial stage that had been advanced to
an earlier stage in the proceedings, such as the right to counsel and
the right against self-incrimination (tsn, August 31, 1999, p. 135;
Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S.
335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we
held that the right against self-incrimination under Section 17,
Article III of the 1987 Constitution which is ordinarily available only
in criminal prosecutions, extends to administrative proceedings
which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with
immorality, which could result in his loss of the privilege to practice
medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation
of one's license as a medical practitioner, is an even greater
deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of
unexplained wealth against a respondent which was filed under
Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of
property, the administrative proceedings are deemed criminal or
penal, and such forfeiture partakes the nature of a penalty. There
is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]),
where the Court, citing American jurisprudence, laid down the test
to determine whether a proceeding is civil or criminal: If the
proceeding is under a statute such that if an indictment is
presented the forfeiture can be included in the criminal case, such
proceeding is criminal in nature, although it may be civil in form;
and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil.
If, however, the proceeding does not involve the conviction of the
wrongdoer for the offense charged, the proceeding is civil in
nature.
The cases mentioned above refer to an impending threat of
deprivation of one's property or property right. No less is this true,
but even more so in the case before us, involving as it does the
possible deprivation of liberty, which, based on the hierarchy of
constitutionally protected rights, is placed second only to life itself
and enjoys precedence over property, for while forfeited property
can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request
exposes a person to eventual extradition to a foreign country, thus
saliently exhibiting the criminal or penal aspect of the process. In
this sense, the evaluation procedure is akin to a preliminary
investigation since both procedures may have the same result —
the arrest and imprisonment of the respondent or the person
charged. Similar to the evaluation stage of extradition proceedings,
a preliminary investigation, which may result in the filing of an
information against the respondent, can possibly lead to his arrest,
and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241
[1992]) (p. 8, petitioner's Memorandum) that the extradition treaty
is neither a piece of criminal legislation nor a criminal procedural
statute is not well-taken. Wright is not authority for petitioner's
conclusion that his preliminary processing is not akin to a
preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition
against an ex post factolaw. It had nothing to do with the denial of
the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any
legal proceeding enforced by public authority, whether sanctioned
by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which
regards and preserved these principles of liberty and justice, must
be held to be due process of law" (Hurtado vs. California, 110 U.S.
516). Compliance with due process requirements cannot be
deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern
about the suppression and punishment of crime in their respective
jurisdictions. At the same time, both States accord common due
process protection to their respective citizens.
The due process clauses in the American and Philippine
Constitutions are not only worded in exactly identical language and
terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with
which the provisions are informed and impressed, the elasticity in
their interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and their
having been designed from earliest time to the present to meet
the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United
States and the Philippines as not denying to the law the capacity
for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer
to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course
of the decisions of cases as they arise" (Twining vs. New Jersey, 211
U.S. 78). Capsulized, it refers to "the embodiment of the sporting
idea of fair play" (Ermita-Malate Hotel and Motel Owner's
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It
relates to certain immutable principles of justice which inhere in
the very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due
process which requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty, or property, and
procedural due process which consists of the two basic rights of
notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993
Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of
notice and hearing pervade not only in criminal and civil
proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case affecting
their interests, and upon notice, they may claim the right to appear
therein and present their side and to refute the position of the
opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative
investigatory proceeding, Section 3, Rule 112 of the Rules of Court
guarantees the respondent's basic due process rights, granting him
the right to be furnished a copy of the complaint, the affidavits,
and other supporting documents, and the right to submit counter-
affidavits and other supporting documents within ten days from
receipt thereof. Moreover, the respondent shall have the right to
examine all other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable in
certain instances, such as:
1. In proceeding where there is an urgent need for immediate
action, like the summary abatement of a nuisance per se (Article
704, Civil Code), the preventive suspension of a public servant
facing administrative charges (Section 63, Local Government Code,
B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are
immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal
prosecution;
2. Where there is tentativeness of administrative action, that is,
where the respondent is not precluded from enjoying the right to
notice and hearing at a later time without prejudice to the person
affected, such as the summary distraint and levy of the property of
a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right
to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be
asked: Does the evaluation stage of the extradition proceedings fall
under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition
proceedings which are quite noteworthy considering that the
subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition
or extradition which is based on the Extradition Clause in the U.S.
Constitution (Art. IV, §2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of
the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest
purpose, which is to effect the return as swiftly as possible of
persons for trial to the state in which they have been charged with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of
an alleged fugitive, the requisition papers or the demand must be
in proper form, and all the elements or jurisdictional facts essential
to the extradition must appear on the face of the papers, such as
the allegation that the person demanded was in the demanding
state at the time the offense charged was committed, and that the
person demanded is charged with the commission of the crime or
that prosecution has been begun in the demanding state before
some court or magistrate (35 C.J.S. 406-407). The extradition
documents are then filed with the governor of the asylum state,
and must contain such papers and documents prescribed by
statute, which essentially include a copy of the instrument charging
the person demanded with a crime, such as an indictment or an
affidavit made before a magistrate. Statutory requirements with
respect to said charging instrument or papers are mandatory since
said papers are necessary in order to confer jurisdiction on the
government of the asylum state to effect extradition (35 C.J.S. 408-
410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or
sentence and other instruments accompanying the demand or
requisitions be furnished and delivered to the fugitive or his
attorney is directory. However, the right being such a basic one has
been held to be a right mandatory on demand (Ibid., p. 410,
citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex
parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide
for the presentation to the executive authority of the Requested
State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having
authority to act in behalf of the demanding nation (31A Am Jur 2d
815).
In petitioner's memorandum filed on September 15, 1999, he
attached thereto a letter dated September 13, 1999 from the
Criminal Division of the U.S. Department of Justice, summarizing
the U.S. extradition procedures and principles, which are basically
governed by a combination of treaties (with special reference to
the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:
1. All requests for extradition are transmitted through the
diplomatic channel. In urgent cases, requests for the provincial
arrest of an individual may be made directly by the Philippine
Department of Justice to the U.S. Department of Justice, and vice-
versa. In the event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the diplomatic
channel.
2. The Department of State forwards the incoming Philippine
extradition request to the Department of Justice. Before doing so,
the Department of State prepares a declaration confirming that a
formal request has been made, that the treaty is in full force and
effect, that under Article 17 thereof the parties provide reciprocal
legal representation in extradition proceedings, that the offenses
are covered as extraditable offenses under Article 2 thereof, and
that the documents have been authenticated in accordance with
the federal statute that ensures admissibility at any subsequent
extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for
the arrest of the prospective extraditee (18 U.S.C. §3184). Said
judge or magistrate is authorized to hold a hearing to consider the
evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person
arrested is extraditable to the foreign country. The court must also
determine that (a) it has jurisdiction over the defendant and
jurisdiction to conduct the hearing; (b) the defendant is being
sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the
defendant is the person sought and that he committed the
offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to
certify extraditability after having received a "complaint made
under oath, charging any person found within his jurisdiction" with
having committed any of the crimes provided for by the governing
treaty in the country requesting extradition (Ibid.) [In this regard, it
is noted that a long line of American decisions pronounce that
international extradition proceedings partake of the character of a
preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am
Jur 2d 826).]
6. If the court decides that the elements necessary for extradition
are present, it incorporates its determinations in factual findings
and conclusions of law and certifies the person's extraditability.
The court then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of State. The
ultimate decision whether to surrender an individual rests with the
Secretary of State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions
concerning the motives of the requesting government in seeking
his extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State,
who makes the final determination whether to surrender an
individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States,
extradition begins and ends with one entity — the Department of
State — which has the power to evaluate the request and the
extradition documents in the beginning, and, in the person of the
Secretary of State, the power to act or not to act on the court's
determination of extraditability. In the Philippine setting, it is the
Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points
earlier mentioned (see pp. 10-12), then forwards the request to
the Department of Justice for the preparation and filing of the
petition for extradition. Sadly, however, the Department of Foreign
Affairs, in the instant case, perfunctorily turned over the request to
the Department of Justice which has taken over the task of
evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S.
Government should the person sought to be extradited be given
due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioner's primary concern is the possible delay
in the evaluation process.
We agree with private respondent's citation of an American
Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of
cognizance in constitutional adjudication. But the Constitution
recognizes higher values than speed and efficiency. Indeed, one
might fairly say of the Bill of Rights in general, and the Due Process
Clause, in particular, that they were designed to protect the fragile
values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy that may characterize praiseworthy
government officials no less, and perhaps more, than mediocre
ones. (Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the
Philippine Government that no right — that of liberty — secured
not only by the Bills of Rights of the Philippines Constitution but of
the United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that
right (Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that
extradition is a tool of criminal law enforcement. To be effective,
requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless,
accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not
always clash in discord. Summary does not mean precipitous haste.
It does not carry a disregard of the basic principles inherent in
"ordered liberty."
Is there really an urgent need for immediate action at the
evaluation stage? At that point, there is no extraditee yet in the
strict sense of the word. Extradition may or may not occur. In
interstate extradition, the governor of the asylum state may not, in
the absence of mandatory statute, be compelled to act favorably
(37 C.J.S. 387) since after a close evaluation of the extradition
papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am
Jur 2d 819). Similarly, under an extradition treaty, the executive
authority of the requested state has the power to deny the behest
from the requesting state. Accordingly, if after a careful
examination of the extradition documents the Secretary of Foreign
Affairs finds that the request fails to meet the requirements of the
law and the treaty, he shall not forward the request to the
Department of Justice for the filing of the extradition petition since
non-compliance with the aforesaid requirements will not vest our
government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice
exerted notable efforts in assuring compliance with the
requirements of the law and the treaty since it even informed the
U.S. Government of certain problems in the extradition papers
(such as those that are in Spanish and without the official English
translation, and those that are not properly authenticated). In fact,
petitioner even admits that consultation meetings are still
supposed to take place between the lawyers in his Department and
those from the U.S. Justice Department. With the meticulous
nature of the evaluation, which cannot just be completed in an
abbreviated period of time due to its intricacies, how then can we
say that it is a proceeding that urgently necessitates immediate
and prompt action where notice and hearing can be dispensed
with?
Worthy of inquiry is the issue of whether or not there is
tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a later
time without prejudice to him? Here lies the peculiarity and
deviant characteristic of the evaluation procedure. On one hand
there is yet no extraditee, but ironically on the other, it results in
an administrative if adverse to the person involved, may cause his
immediate incarceration. The grant of the request shall lead to the
filing of the extradition petition in court. The "accused" (as Section
2[c] of Presidential Decree No. 1069 calls him), faces the threat of
arrest, not only after the extradition petition is filed in court, but
even during the evaluation proceeding itself by virtue of the
provisional arrest allowed under the treaty and the implementing
law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due
process cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private
respondent likewise invokes Section 7 of Article III which reads:
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 above provision guarantees political rights which are available
to citizens of the Philippines, namely: (1) the right to information
on matters of public concern, and (2) the corollary right of access
to official records documents. The general right guaranteed by said
provision is the right to information on matters of public concern.
In its implementation, the right of access to official records is
likewise conferred. These cognate or related rights are "subject to
limitations as may be provided by law" (Bernas, The 1987 Phil.
Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the
premise that ultimately it is an informed and critical public opinion
which alone can protect the values of democratic government
(Ibid.).
Petitioner argues that the matters covered by private respondent's
letter-request dated July 1, 1999 do not fall under the guarantee of
the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other
hand, private respondent argues that the distinction between
matters vested with public interest and matters which are of
purely private interest only becomes material when a third person,
who is not directly affected by the matters requested, invokes the
right to information. However, if the person invoking the right is
the one directly affected thereby, his right to information becomes
absolute.
The concept of matters of public concerns escapes exact definition.
Strictly speaking, every act of a public officer in the conduct of the
governmental process is a matter of public concern (Bernas, The
1987 Constitution of the Republic of the Philippines, 1996 ed., p.
336). This concept embraces a broad spectrum of subjects which
the public may want to know, either because these directly affect
their lives or simply because such matters arouse the interest of an
ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530
[1987]). Hence, the real party in interest is the people and any
citizen has "standing".
When the individual himself is involved in official government
action because said action has a direct bearing on his life, and may
either cause him some kind of deprivation or injury, he actually
invokes the basic right to be notified under Section 1 of the Bill of
Rights and not exactly the right to information on matters of public
concern. As to an accused in a criminal proceeding, he invokes
Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.
The right to information is implemented by the right of access to
information within the control of the government (Bernas, The
1987 Constitution of the Republic of the Philippines, 1996 ed., p.
337). Such information may be contained in official records, and in
documents and papers pertaining to official acts, transactions, or
decisions.
In the case at bar, the papers requested by private respondent
pertain to official government action from the U.S. Government.
No official action from our country has yet been taken. Moreover,
the papers have some relation to matters of foreign relations with
the U.S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are
matters of public concern since they may result in the extradition
of a Filipino, we are afraid that the balance must be tilted, at such
particular time, in favor of the interests necessary for the proper
functioning of the government. During the evaluation procedure,
no official governmental action of our own government has as yet
been done; hence the invocation of the right is premature. Later,
and in contrast, records of the extradition hearing would already
fall under matters of public concern, because our government by
then shall have already made an official decision to grant the
extradition request. The extradition of a fellow Filipino would be
forthcoming.
We now pass upon the final issue pertinent to the subject matter
of the instant controversy: Would private respondent's entitlement
to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the
Philippine Government under the RP-Extradition Treaty? Assuming
the answer is in the affirmative, is there really a conflict between
the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the
proper time to pass upon the constitutionality of the provisions of
the RP-US Extradition Treaty nor the Extradition Law implementing
the same. We limit ourselves only to the effect of the grant of the
basic rights of notice and hearing to private respondent on foreign
relations.
The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to a
treaty to keep their agreement therein in good faith. The
observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which
provides that "[t]he Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity
with nations." Under the doctrine of incorporation, rules of Petitioner interprets this silence as unavailability of these rights.
international law form part of the law of the and land no further Consequently, he describes the evaluation procedure as an "ex
legislative action is needed to make such rules applicable in the parte technical assessment" of the sufficiency of the extradition
domestic sphere (Salonga & Yap, Public International Law, 1992 request and the supporting documents.
ed., p. 12).
We disagree.
The doctrine of incorporation is applied whenever municipal
tribunals (or local courts) are confronted with situations in which In the absence of a law or principle of law, we must apply the rules
there appears to be a conflict between a rule of international law of fair play. An application of the basic twin due process rights of
and the provisions of the constitution or statute of the local state. notice and hearing will not go against the treaty or the
Efforts should first be exerted to harmonize them, so as to give implementing law. Neither the Treaty nor the Extradition Law
effect to both since it is to be presumed that municipal law was precludes these rights from a prospective extraditee. Similarly,
enacted with proper regard for the generally accepted principles of American jurisprudence and procedures on extradition pose no
international law in observance of the observance of the proscription. In fact, in interstate extradition proceedings as
Incorporation Clause in the above-cited constitutional provision explained above, the prospective extraditee may even request for
(Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, copies of the extradition documents from the governor of the
however, where the conflict is irreconcilable and a choice has to be asylum state, and if he does, his right to be supplied the same
made between a rule of international law and municipal law, becomes a demandable right (35 C.J.S. 410).
jurisprudence dictates that municipal law should be upheld by the
municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957];
Petitioner contends that the United States requested the
Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA
Philippine Government to prevent unauthorized disclosure of
984 [1961]) for the reason that such courts are organs of municipal
confidential information. Hence, the secrecy surrounding the
law and are accordingly bound by it in all circumstances (Salonga &
action of the Department of Justice Panel of Attorneys. The
Yap, op. cit., p. 13). The fact that international law has been made
confidentiality argument is, however, overturned by petitioner's
part of the law of the land does not pertain to or imply the primacy
revelation that everything it refuses to make available at this stage
of international law over national or municipal law in the municipal
would be obtainable during trial. The Department of Justice states
sphere. The doctrine of incorporation, as applied in most countries,
that the U.S. District Court concerned has authorized the
decrees that rules of international law are given equal standing
disclosure of certain grand jury information. If the information is
with, but are not superior to, national legislative enactments.
truly confidential, the veil of secrecy cannot be lifted at any stage
Accordingly, the principle lex posterior derogat priori takes effect
of the extradition proceedings. Not even during trial.
— a treaty may repeal a statute and a statute may repeal a treaty.
In states where the constitution is the highest law of the land, such
as the Republic of the Philippines, both statutes and treaties may A libertarian approach is thus called for under the premises.
be invalidated if they are in conflict with the constitution (Ibid.). One will search in vain the RP-US Extradition Treaty, the Extradition
Law, as well as American jurisprudence and procedures on
extradition, for any prohibition against the conferment of the two
In the case at bar, is there really a conflict between international
basic due process rights of notice and hearing during the
law and municipal or national law? En contrario, these two
evaluation stage of the extradition proceedings. We have to
components of the law of the land are not pined against each
consider similar situations in jurisprudence for an application by
other. There is no occasion to choose which of the two should be
analogy.
upheld. Instead, we see a void in the provisions of the RP-US
Extradition Treaty, as implemented by Presidential Decree No.
Earlier, we stated that there are similarities between the
1069, as regards the basic due process rights of a prospective
evaluation process and a preliminary investigation since both
extraditee at the evaluation stage of extradition proceedings. From
procedures may result in the arrest of the respondent or the
the procedures earlier abstracted, after the filing of the extradition
prospective extraditee. In the evaluation process, a provisional
petition and during the judicial determination of the propriety of
arrest is even allowed by the Treaty and the Extradition Law
extradition, the rights of notice and hearing are clearly granted to
(Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree
the prospective extraditee. However, prior thereto, the law is silent
No. 1069). Following petitioner's theory, because there is no
as to these rights. Reference to the U.S. extradition procedures
provision of its availability, does this imply that for a period of time,
also manifests this silence.
the privilege of the writ of habeas corpus is suspended, despite
Section 15, Article III of the Constitution which states that "[t]he
privilege of the writ or habeas corpus shall not be suspended
except in cases of invasion or rebellion when the public safety
requires it"? Petitioner's theory would also infer that bail is not
available during the arrest of the prospective extraditee when the
extradition petition has already been filed in court since
Presidential Decree No. 1069 does not provide therefor,
notwithstanding Section 13, Article III of the Constitution which
provides that "[a]ll persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. . ." Can petitioner validly argue that
since these contraventions are by virtue of a treaty and hence
affecting foreign relations, the aforestated guarantees in the Bill of
Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the
essence of due process in administrative proceeding is an
opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs.
NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997];
PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276
SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602
[1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence,
procedural due process refers to the method or manner by which
the law is enforced (Corona vs. United Harbor Pilots Association of
the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the
least disregard of constitutional guarantees in the enforcement of
a law or treaty. Petitioner's fears that the Requesting State may
have valid objections to the Requested State's non-performance of
its commitments under the Extradition Treaty are insubstantial and
should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we
limit ourselves to the four corners of Presidential Decree No.
1069?
Of analogous application are the rulings in Government Service
Insurance System vs. Court of Appeals (201 SCRA 661 [1991])
and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential
Decree No. 807 (Providing for the Organization of the Civil Service
Commission in Accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged
for Service-Connected Offenses and Improving the Disciplinary
System in the Integrated National Police, Appropriating Funds
Therefor and for other purposes), as amended by Presidential
Decree No. 1707, although summary dismissals may be effected
without the necessity of a formal investigation, the minimum
requirements of due process still operate. As held in GSIS vs. Court
of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40
is saying is that an employee may be removed or dismissed even
without formal investigation, in certain instances. It is equally clear
to us that an employee must be informed of the charges preferred
against him, and that the normal way by which the employee is so
informed is by furnishing him with a copy of the charges against
him. This is a basic procedural requirement that a statute cannot
dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is
that the employee charged with some misfeasance or malfeasance
must have a reasonable opportunity to present his side of the
matter, that is to say, his defenses against the charges levelled
against him and to present evidence in support of his defenses. . .
.(at p. 671)
Said summary dismissal proceedings are also non-litigious in
nature, yet we upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear
and present danger of loss of property or employment, but of
liberty itself, which may eventually lead to his forcible banishment
to a foreign land. The convergence of petitioner's favorable action
on the extradition request and the deprivation of private
respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction,
which is aptly described as "justice outside legality," may be availed
of only in the absence of, and never against, statutory law or
judicial pronouncements (Smith Bell & Co., Inc. vs. Court of
Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals,
268 SCRA 677 [1997]). The constitutional issue in the case at bar
does not even call for "justice outside legality," since private
respondent's due process rights, although not guaranteed by
statute or by treaty, are protected by constitutional guarantees.
We would not be true to the organic law of the land if we choose
strict construction over guarantees against the deprivation of
liberty. That would not be in keeping with the principles of
democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and
opposing currents of liberty and government authority, he must
ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant
petition is hereby DISMISSED for lack of merit. Petitioner is ordered
to furnish private respondent copies of the extradition request and
its supporting papers, and to grant him a reasonable period within
which to file his comment with supporting evidence. The incidents
in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.
SO ORDERED.
EN BANC
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER
FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA,
GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE,
JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred in
the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization; SALVADOR
ENRIQUEZ, in his capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in her capacity as National
Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of
Trade and Industry; ROBERTO SEBASTIAN, in his capacity as
Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business and
economic relations amongst states. It has irreversibly propelled the
world towards trade liberalization and economic globalization.
Liberalization, globalization, deregulation and privatization, the
third-millennium buzz words, are ushering in a new borderless
world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative
restrictions, tax exemptions and currency controls. Finding market
niches and becoming the best in specific industries in a market-
driven and export-oriented global scenario are replacing age-old
"beggar-thy-neighbor" policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In the words
of Peter Drucker, the well-known management guru, "Increased
participation in the world economy has become the key to
domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by
the Second World War, plans for the establishment of three
multilateral institutions — inspired by that grand political body, the
United Nations — were discussed at Dumbarton Oaks and Bretton
Woods. The first was the World Bank (WB) which was to address
the rehabilitation and reconstruction of war-ravaged and later
developing countries; the second, the International Monetary Fund
(IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order
and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from
other states. However, for a variety of reasons, including its non-
ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT — the General
Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or
dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations,
principally the Kennedy Round, the Tokyo Round and the Uruguay
Round, the world finally gave birth to that administering body —
the World Trade Organization — with the signing of the "Final Act"
in Marrakesh, Morocco and the ratification of the WTO Agreement
by its members.1
Like many other developing countries, the Philippines joined WTO
as a founding member with the goal, as articulated by President
Fidel V. Ramos in two letters to the Senate (infra), of improving
"Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products." The President also
saw in the WTO the opening of "new opportunities for the services
sector . . . , (the reduction of) costs and uncertainty associated with
exporting . . . , and (the attraction of) more investments into the
country." Although the Chief Executive did not expressly mention it
in his letter, the Philippines — and this is of special interest to the
legal profession — will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO
settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly
through negotiations where solutions were arrived at frequently
on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place
nationals and products of member-countries on the same footing
as Filipinos and local products" and (2) that the WTO "intrudes,
limits and/or impairs" the constitutional powers of both Congress
and the Supreme Court, the instant petition before this Court
assails the WTO Agreement for violating the mandate of the 1987
Constitution to "develop a self-reliant and independent national
economy effectively controlled by Filipinos . . . (to) give preference
to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic
globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are
the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public
officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive
offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
The Department of Trade and Industry (Secretary Navarro, for
brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the
Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with a
view to seeking approval of the Agreement in accordance with
their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate
received a letter dated August 11, 1994 from the President of the
Philippines,3 stating among others that "the Uruguay Round Final
Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate
received another letter from the President of the
Philippines4 likewise dated August 11, 1994, which stated among
others that "the Uruguay Round Final Act, the Agreement
Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution
entitled "Concurring in the Ratification of the Agreement
Establishing the World Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution
No. 97 which "Resolved, as it is hereby resolved, that the Senate
concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade
Organization."6 The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements
and associated legal instruments (identified in the said Agreement
as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines
signed7 the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of
the Republic of the Philippines, after having seen and considered
the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments
included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh,
Morocco on 15 April 1994, do hereby ratify and confirm the same
and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and "the
associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,8 the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such as
measures in favor of least developed countries, notification
procedures, relationship of WTO with the International Monetary
Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of
commitments to existing non-conforming measures, market
access, national treatment, and definitions of non-resident supplier
of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After
careful deliberation on respondents' comment and petitioners'
reply thereto, the Court resolved on December 12, 1995, to give
due course to the petition, and the parties thereafter filed their
respective memoranda. The court also requested the Honorable
Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter
referred to as "Bautista Paper,"9 for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court
directed:
(a) the petitioners to submit the (1) Senate Committee Report on
the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list
of Philippine treaties signed prior to the Philippine adherence to
the WTO Agreement, which derogate from Philippine sovereignty
and (2) copies of the multi-volume WTO Agreement and other
documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would
consider the case submitted for resolution. In a Compliance dated
September 16, 1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996,
he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine
sovereignty." Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or is
otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the
validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World
Trade Organization contravene the provisions of Sec. 19, Article II,
and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the World
Trade Organization unduly limit, restrict and impair Philippine
sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is "vested in the Congress of
the Philippines";
E. Whether provisions of the Agreement Establishing the World
Trade Organization interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction
when they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the World Trade
Organization.
G. Whether the respondent members of the Senate acted in grave
abuse of discretion amounting to lack or excess of jurisdiction
when they concurred only in the ratification of the Agreement
Establishing the World Trade Organization, and not with the
Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for
respondents "synthesized the several issues raised by petitioners
into the following": 10
1. Whether or not the provisions of the "Agreement Establishing
the World Trade Organization and the Agreements and Associated
Legal Instruments included in Annexes one (1), two (2) and three
(3) of that agreement" cited by petitioners directly contravene or
undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly
limit, restrict or impair the exercise of legislative power by
Congress.
3. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating
the rules of evidence.
4. Whether or not the concurrence of the Senate "in the
ratification by the President of the Philippines of the Agreement
establishing the World Trade Organization" implied rejection of the
treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented
by petitioners, the Solicitor General has effectively ignored three,
namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when
they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to
deal with these three issues thus:
(1) The "political question" issue — being very fundamental and
vital, and being a matter that probes into the very jurisdiction of
this Court to hear and decide this case — was deliberated upon by
the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this
defense is waivable and the respondents have effectively waived it
by not pursuing it in any of their pleadings; in any event, this issue,
even if ruled in respondents' favor, will not cause the petition's
dismissal as there are petitioners other than the two senators, who
are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the
disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners.
Hence, they are also deemed to have waived the benefit of such
issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international
commitments of the nation are involved here, and that
transcendental public interest requires that the substantive issues
be met head on and decided on the merits, rather than skirted or
deflected by procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY?
OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL
QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE
ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12,
ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES
LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER
BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE
EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING
RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld." 12 Once a "controversy as to the
application or interpretation of a constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in
the petition is clearly set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.
The foregoing text emphasizes the judicial department's duty and
power to strike down grave abuse of discretion on the part of any
branch or instrumentality of government including Congress. It is
an innovation in our political law. 16As explained by former Chief
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on
the question of whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of jurisdiction
or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many
cases, 18 it will not shirk, digress from or abandon its sacred duty
and authority to uphold the Constitution in matters that involve
grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department
of the government.
As the petition alleges grave abuse of discretion and as there is no
other plain, speedy or adequate remedy in the ordinary course of
law, we have no hesitation at all in holding that this petition should
be given due course and the vital questions raised therein ruled
upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this
petition, this Court will not review the wisdom of the decision of
the President and the Senate in enlisting the country into the WTO,
or pass upon the merits of trade liberalization as a policy espoused
by said international body. Neither will it rule on the propriety of
the government's economic policy of reducing/removing tariffs,
taxes, subsidies, quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its constitutional duty "to
determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part
of the Senate in ratifying the WTO Agreement and its three
annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of
the Constitution mandating "economic nationalism" are violated by
the so-called "parity provisions" and "national treatment" clauses
scattered in various parts not only of the WTO Agreement and its
annexes but also in the Ministerial Decisions and Declarations and
in the Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are
Sec 19, Article II, and Secs. 10 and 12, Article XII, of the
Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
xxx xxx x x x Sec. 19. The State shall develop a self-
reliant and independent national economy effectively controlled by
Filipinos.
xxx xxx x x x Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx x x x Sec. 10. . . . The Congress shall enact
measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference
to qualified Filipinos.
xxx xxx x x x Sec. 12. The State shall promote the
preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum: 19
a) In the area of investment measures related to trade in goods
(TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT
1994, no Member shall apply any TRIM that is inconsistent with the
provisions of Article II or Article XI of GATT 1994.
2. An illustrative list of TRIMS that are inconsistent with the
obligations of general elimination of quantitative restrictions
provided for in paragraph I of Article XI of GATT 1994 is contained
in the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments,
p. 22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT 1994
include those which are mandatory or enforceable under domestic
law or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic
origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or
(b) that an enterprise's purchases or use of imported products be
limited to an amount related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1
of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings,
or compliance with which is necessary to obtain an advantage, and
which restrict:
(a) the importation by an enterprise of products used in or related
to the local production that it exports;
(b) the importation by an enterprise of products used in or related
to its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of products, or in
terms of a preparation of volume or value of its local production.
(Annex to the Agreement on Trade-Related Investment Measures,
Vol. 27, Uruguay Round Legal Documents, p. 22125, emphasis
supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
The products of the territory of any contracting party imported
into the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products of
national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase,
transportation, distribution or use, the provisions of this paragraph
shall not prevent the application of differential internal
transportation charges which are based exclusively on the
economic operation of the means of transport and not on the
nationality of the product." (Article III, GATT 1947, as amended by
the Protocol Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property
rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . .
(par. 1 Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.
25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any
conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment
no less favourable than it accords to its own like services and
service suppliers.
2. A Member may meet the requirement of paragraph I by
according to services and service suppliers of any other Member,
either formally identical treatment or formally different treatment
to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be
considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the
Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal Instruments, p. 22610 emphasis
supplied).
It is petitioners' position that the foregoing "national treatment"
and "parity provisions" of the WTO Agreement "place nationals
and products of member countries on the same footing as Filipinos
and local products," in contravention of the "Filipino First" policy of
the Constitution. They allegedly render meaningless the phrase
"effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear
duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed
agreements. 20 Petitioners further argue that these provisions
contravene constitutional limitations on the role exports play in
national development and negate the preferential treatment
accorded to Filipino labor, domestic materials and locally produced
goods.
On the other hand, respondents through the Solicitor General
counter (1) that such Charter provisions are not self-executing and
merely set out general policies; (2) that these nationalistic portions
of the Constitution invoked by petitioners should not be read in
isolation but should be related to other relevant provisions of Art.
XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the
cited WTO clauses do not conflict with Constitution; and (4) that
the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of
sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the
1935 Constitution 21 is called the "basic political creed of the
nation" by Dean Vicente Sinco. 22 These principles in Article II are
not intended to be self-executing principles ready for enforcement
through the courts. 23They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections of Article XII are
not "self-executing provisions, the disregard of which can give rise
to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad
constitutional principles need legislative enactments to implement
the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state
also that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should
be passed by Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions were not intended to be
self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of board constitutional principles are sourced from
basic considerations of due process and the lack of judicial
authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr., 26 explained these
reasons as follows:
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in language of
a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures
to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment grating all or part of the
relief prayed for. To my mind, the court should be understood as
simply saying that such a more specific legal right or rights may
well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate,
instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions
to this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced
and healthy ecology" and "the right to health" are combined with
remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result
will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in
respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then
the policy making departments — the legislative and executive
departments — must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely
laying down general principles relating to the national economy
and patrimony, should be read and understood in relation to the
other sections in said article, especially Secs. 1 and 13 thereof
which read:
Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding productivity
as the key to raising the quality of life for all especially the
underprivileged.
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human and
natural resources, and which are competitive in both domestic and
foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. . . .
xxx xxx xxx Sec. 13. The State shall pursue a trade policy that serves
the general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic
goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and
wealth;
2. A sustained increase in the amount of goods and services
provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life
for all especially the underprivileged.
With these goals in context, the Constitution then ordains the
ideals of economic nationalism (1) by expressing preference in
favor of qualified Filipinos "in the grant of rights, privileges and
concessions covering the national economy and patrimony" 27 and
in the use of "Filipino labor, domestic materials and locally-
produced goods"; (2) by mandating the State to "adopt measures
that help make them competitive; 28 and (3) by requiring the State
to "develop a self-reliant and independent national economy
effectively controlled by Filipinos." 29 In similar language, the
Constitution takes into account the realities of the outside world as
it requires the pursuit of "a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality ad reciprocity"; 30 and speaks of industries "which
are competitive in both domestic and foreign markets" as well as of
the protection of "Filipino enterprises against unfair foreign
competition and trade practices."
It is true that in the recent case of Manila Prince Hotel
vs. Government Service Insurance System, et al., 31 this Court held
that "Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rule for
its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially
enforceable." However, as the constitutional provision itself states,
it is enforceable only in regard to "the grants of rights, privileges
and concessions covering national economy and patrimony" and
not to every aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this paragraph
of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is
whether, as a rule, there are enough balancing provisions in the
Constitution to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection
of Filipino enterprises only against foreign competition and trade
practices that are unfair. 32 In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and investments into
the country, it does not prohibit them either. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself
has some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members.
Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are
made on the basis of sovereign equality, with each member's vote
equal in weight to that of any other. There is no WTO equivalent of
the UN Security Council.
WTO decides by consensus whenever possible, otherwise,
decisions of the Ministerial Conference and the General Council
shall be taken by the majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN
provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon
the expiration of six months from the date of notice of
withdrawals. 33
Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their
economic agenda more decisively than outside the Organization.
This is not merely a matter of practical alliances but a negotiating
strategy rooted in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing countries like
the Philippines to "share in the growth in international
trade commensurate with the needs of their economic
development." These basic principles are found in the
preamble 34of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for
the optimal use of the world's resources in accordance with the
objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing
so in a manner consistent with their respective needs and concerns
at different levels of economic development,
Recognizing further that there is need for positive efforts designed
to ensure that developing countries, and especially the least
developed among them, secure a share in the growth in
international trade commensurate with the needs of their economic
development,
Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to
the substantial reduction of tariffs and other barriers to trade and
to the elimination of discriminatory treatment in international
trade relations,
Resolved, therefore, to develop an integrated, more viable and
durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, . . .
(emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO Agreement
grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount
of tariff reduction and the period within which the reduction is to
be spread out. Specifically, GATT requires an average
tariff reduction rate of 36% for developed countries to be effected
within a period of six (6) years while developing countries —
including the Philippines — are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for developing
countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries,
however, the reduction rate is only two-thirds of that prescribed
for developed countries and a longer period of ten (10)
years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping
measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is
hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to
steer the ship of state into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on the ground
of grave abuse of discretion, simply because we disagree with it or
simply because we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization
as an economic policy. It will only perform its constitutional duty of
determining whether the Senate committed grave abuse of
discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and
independent national economy" 35 does not necessarily rule out
the entry of foreign investments, goods and services. It
contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional
policy:
Economic self-reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean autarky
or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom
from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural
resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment,"
and "trade without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity
that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law
encourages industries that are "competitive in both domestic and
foreign markets," thereby demonstrating a clear policy against a
sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor
of any business or enterprise, nor does it contain any specific
pronouncement that Filipino companies should be pampered with
a total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the
Filipino consumer the best goods and services obtainable
anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will
favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the
general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare
because it will — as promised by its promoters — expand the
country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and
quality products at the most reasonable rates to the Filipino
public?
The responses to these questions involve "judgment calls" by our
policy makers, for which they are answerable to our people during
appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave
abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless
world of business. By the same token, the United Nations was not
yet in existence when the 1935 Constitution became effective. Did
that necessarily mean that the then Constitution might not have
contemplated a diminution of the absoluteness of sovereignty
when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are
designed to meet not only the vagaries of contemporary events.
They should be interpreted to cover even future and unknown
circumstances. It is to the credit of its drafters that a Constitution
can withstand the assaults of bigots and infidels but at the same
time bend with the refreshing winds of change necessitated by
unfolding events. As one eminent political law writer and
respected jurist 38explains:
The Constitution must be quintessential rather than superficial, the
root and not the blossom, the base and frame-work only of the
edifice that is yet to rise. It is but the core of the dream that must
take shape, not in a twinkling by mandate of our delegates, but
slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally
achieve its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure
and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far
from becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure
the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed
Agreements." 39 Petitioners maintain that this undertaking "unduly
limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines.
It is an assault on the sovereign powers of the Philippines because
this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such
legislation will not conform with the WTO Agreement, which not
only relates to the trade in goods . . . but also to the flow of
investments and money . . . as well as to a whole slew of
agreements on socio-cultural matters . . . 40
More specifically, petitioners claim that said WTO proviso
derogates from the power to tax, which is lodged in the
Congress. 41 And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts,
such authority is subject to "specified limits and . . . such
limitations and restrictions" as Congress may provide, 42 as in fact it
did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while
sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution
"adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all
nations." 43 By the doctrine of incorporation, the country is bound
by generally accepted principles of international law, which are
considered to be automatically part of our own laws. 44 One of the
oldest and most fundamental rules in international law is pacta
sunt servanda — international agreements must be performed in
good faith. "A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties . . . A state
which has contracted valid international obligations is bound to
make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact.
After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus,
treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease
of naval bases, the sale or cession of territory, the termination of
war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of
claims, the laying down of rules governing conduct in peace and
the establishment of international organizations. 46 The
sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations.
As aptly put by John F. Kennedy, "Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The age
of interdependence is here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its
51 charter members, it consented to restrict its sovereign rights
under the "concept of sovereignty as auto-limitation."47-A Under
Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or
enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but
also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United
Nations Emergency Force in the Middle East and in the Congo were
"expenses of the United Nations" under Article 17, paragraph 2, of
the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the
UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of
members within their own territory. Another example: although
"sovereign equality" and "domestic jurisdiction" of all members are
set forth as underlying principles in the UN Charter, such provisos
are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and
security under Chapter VII of the Charter. A final example: under
Article 103, "(i)n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their
obligation under the present charter shall prevail," thus
unquestionably denying the Philippines — as a member — the
sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many
other international pacts — both bilateral and multilateral — that
involve limitations on Philippine sovereignty. These are
enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt
from tax, income received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the Export/Import Bank
of the United States, the Overseas Private Investment Corporation
of the United States. Likewise, in said convention, wages, salaries
and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees
or officials of the United States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for
the avoidance of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the
avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance
of double taxation.
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties, inspection
fees and other duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies arriving with said
aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines
agreed to exempt from customs duties, excise taxes, inspection
fees and other similar duties, taxes or charges fuel, lubricating oils,
spare parts, regular equipment, stores on board Japanese aircrafts
while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the
Philippines granted Belgian air carriers the same privileges as those
granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor
visas where the Philippines exempted Israeli nationals from the
requirement of obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals
from the requirement of obtaining transit and visitor visa for a
sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the
Philippines agreed that premises of Special Missions in the
Philippines are inviolable and its agents can not enter said
premises without consent of the Head of Mission concerned.
Special Missions are also exempted from customs duties, taxes and
related charges.
(k) Multilateral convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the Vienna
Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting
compulsory jurisdiction of the International Court of Justice. The
International Court of Justice has jurisdiction in all legal disputes
concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established,
would constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of
the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-
GATT.
International treaties, whether relating to nuclear disarmament,
human rights, the environment, the law of the sea, or trade,
constrain domestic political sovereignty through the assumption of
external obligations. But unless anarchy in international relations is
preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties
that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures
reduce the risks of larger countries exploiting raw economic power
to bully smaller countries, by subjecting power relations to some
form of legal ordering. In addition, smaller countries typically stand
to gain disproportionately from trade liberalization. This is due to
the simple fact that liberalization will provide access to a larger set
of potential new trading relationship than in case of the larger
country gaining enhanced success to the smaller country's
market. 48
The point is that, as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines "adopts the generally
accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all
nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the
power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will
be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in paragraph 1
(b) of Article 28, if the subject matter of a patent is a process for
obtaining a product, the judicial authorities shall have the authority
to order the defendant to prove that the process to obtain an
identical product is different from the patented process.
Therefore, Members shall provide, in at least one of the following
circumstances, that any identical product when produced without
the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented
process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was
made by the process and the owner of the patent has been unable
through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate
interests of defendants in protecting their manufacturing and
business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of
disputable (not the words "in the absence of proof to the
contrary") presumption that a product shown to be identical to
one produced with the use of a patented process shall be deemed
to have been obtained by the (illegal) use of the said patented
process, (1) where such product obtained by the patented product
is new, or (2) where there is "substantial likelihood" that the
identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact
process used in obtaining such identical product. Hence, the
"burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood,
actually refers to the "burden of evidence" (burden of going
forward) placed on the producer of the identical (or fake) product
to show that his product was produced without the use of the
patented process.
The foregoing notwithstanding, the patent owner still has the
"burden of proof" since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to introduce
evidence of the existence of the alleged identical product, the fact
that it is "identical" to the genuine one produced by the patented
process and the fact of "newness" of the genuine product or the
fact of "substantial likelihood" that the identical product was made
by the patented process.
The foregoing should really present no problem in changing the
rules of evidence as the present law on the subject, Republic Act
No. 165, as amended, otherwise known as the Patent Law,
provides a similar presumption in cases of infringement of
patented design or utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a
patent for utility model shall consist in unauthorized copying of the
patented design or utility model for the purpose of trade or
industry in the article or product and in the making, using or selling
of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or
utility model shall constitute evidence of copying. (emphasis
supplied)
Moreover, it should be noted that the requirement of Article 34 to
provide a disputable presumption applies only if (1) the product
obtained by the patented process in NEW or (2) there is a
substantial likelihood that the identical product was made by the
process and the process owner has not been able through
reasonable effort to determine the process used. Where either of
these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions
of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our
disposition of the third issue — derogation of legislative power —
will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable
burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not be
substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO
Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and
Decisions and the Understanding on Commitments in Financial
Services — is defective and insufficient and thus constitutes abuse
of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the
Final Act, which in turn was the document signed by Secretary
Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to
the Senate 53 which enumerated what constitutes the Final Act
should have been the subject of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument
which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference." 54 It is not the treaty itself. It is rather a summary of
the proceedings of a protracted conference which may have taken
place over several years. The text of the "Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations" is
contained in just one page 55 in Vol. I of the 36-volume Uruguay
Round of Multilateral Trade Negotiations. By signing said Final Act,
Secretary Navarro as representative of the Republic of the
Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities with a view
to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in
exactly what the Final Act required from its signatories, namely,
concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted
without need for ratification. They were approved by the ministers
by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering
the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It applies
only to those 27 Members which "have indicated in their
respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and
processing of information, and national treatment with respect to
access to payment, clearing systems and refinancing available in
the normal course of business."57
On the other hand, the WTO Agreement itself expresses what
multilateral agreements are deemed included as its integral
parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for
the conduct of trade relations among its Members in matters to
the agreements and associated legal instruments included in the
Annexes to this Agreement.
2. The Agreements and associated legal instruments included in
Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included in
Annex 4 (hereinafter referred to as "Plurilateral Trade
Agreements") are also part of this Agreement for those Members
that have accepted them, and are binding on those Members. The
Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as "GATT 1994") is legally distinct
from the General Agreement on Tariffs and Trade, dated 30
October 1947, annexed to the Final Act adopted at the conclusion
of the Second Session of the Preparatory Committee of the United
Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as "GATT
1947").
It should be added that the Senate was well-aware of what it was
concurring in as shown by the members' deliberation on August
25, 1994. After reading the letter of President Ramos dated August
11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring
in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Tañada that what
was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the
Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis,
Senator Tolentino raised a point of order which, however, he
agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion
was to treat the proceedings of the Committee as being in the
nature of briefings for Senators until the question of the
submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a
new . . . is he making a new submission which improves on the
clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and
there should be no misunderstanding, it was his intention to clarify
all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on
Senator Tolentino since they were the ones that raised this
question yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly
appear that what is being submitted to the Senate for ratification is
not the Final Act of the Uruguay Round, but rather the Agreement
on the World Trade Organization as well as the Ministerial
Declarations and Decisions, and the Understanding and
Commitments in Financial Services.
I am now satisfied with the wording of the new submission of
President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and
Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new
submission actually transmitted to us but I saw the draft of his
earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself . The Constitution does
not require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself
specifies what is going to be submitted to with the governments of
the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to
submit as appropriate the WTO Agreement for the consideration of
the respective competent authorities with a view to seeking
approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance as
whatever their constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that is the one that is
being submitted now, I think it satisfies both the Constitution and
the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on
Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are
already a matter of record. And they had been adequately reflected
in the journal of yesterday's session and I don't see any need for
repeating the same.
Now, I would consider the new submission as an act ex abudante
cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do
you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by
Senator Gonzales out of the abundance of question. Then the new
submission is, I believe, stating the obvious and therefore I have no
further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the
WTO Agreement, petitioners are invoking this Court's
constitutionally imposed duty "to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may be issued
by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. 61 Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. 62 Failure on the
part of the petitioner to show grave abuse of discretion will result
in the dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate,
whose act is under review, is one of two sovereign houses of
Congress and is thus entitled to great respect in its actions. It is
itself a constitutional body independent and coordinate, and thus
its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to
overthrow such presumptions, this Court will resolve every doubt
in its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the
Senate's processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21
of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles — while
serving as judicial and legislative guides — are not in themselves
sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a "trade policy that serves the
general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic
and foreign markets," thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the
exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law
as part of the law of the land and the adherence of the
Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby
making it "a part of the law of the land" is a legitimate exercise of
its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal
hostility" in such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal
reason to attribute grave abuse of discretion to the Senate and to
nullify its decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside the realm of
judicial inquiry and review. That is a matter between the elected
policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in
electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a
member.
The eminent futurist John Naisbitt, author of the best
seller Megatrends, predicts an Asian Renaissance 65 where "the
East will become the dominant region of the world economically,
politically and culturally in the next century." He refers to the "free
market" espoused by WTO as the "catalyst" in this coming Asian
ascendancy. There are at present about 31 countries including
China, Russia and Saudi Arabia negotiating for membership in the
WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure
for multilateral trading and the veritable forum for the
development of international trade law. The alternative to WTO is
isolation, stagnation, if not economic self-destruction. Duly
enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line
experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international
strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected
officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO
DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and
19444 who is now charged before a military Commission convened
by the Chief of Staff of the Armed forces of the Philippines with
having unlawfully disregarded and failed "to discharge his duties as
such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of
the Imperial Japanese Forces in violation of the laws and customs
of war" — comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the
Philippines: to enjoin and prohibit respondents Melville S. Hussey
and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to
permanently prohibit respondents from proceeding with the case
of petitioners.
In support of his case petitioner tenders the following principal
arguments.
First. — "That Executive Order No. 68 is illegal on the ground that it
violates not only the provision of our constitutional law but also
our local laws to say nothing of the fact (that) the Philippines is not
a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international."
Hence petitioner argues — "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional
law an illegal order this commission is without jurisdiction to try
herein petitioner."
Second. — That the participation in the prosecution of the case
against petitioner before the Commission in behalf of the United
State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law
in the Philippines is a diminution of our personality as an
independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not
qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as
prosecution the United State not being a party in interest in the
case.
Executive Order No. 68, establishing a National War Crimes Office
prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the
29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section
3, that —
The Philippines renounces war as an instrument of national policy
and adopts the generally accepted principles of international law
as part of the of the nation.
In accordance with the generally accepted principle of
international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all
those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of
crimes and offenses consequential and incidental thereto in
violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the
generally accepted and policies of international law which are part
of the our Constitution.
The promulgation of said executive order is an exercise by the
President of his power as Commander in chief of all our armed
forces as upheld by this Court in the case of Yamashita vs. Styer (L-
129, 42 Off. Gaz., 664) 1 when we said —
War is not ended simply because hostilities have ceased. After
cessation of armed hostilities incident of war may remain pending
which should be disposed of as in time of war. An importance
incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in
their attempt to thwart or impede our military effort have violated
the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long
as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial
of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)
Consequently, the President as Commander in Chief is fully
empowered to consummate this unfinished aspect of war namely
the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only
in 1947. It cannot be denied that the rules and regulation of the
Hague and Geneva conventions form, part of and are wholly based
on the generally accepted principals of international law. In facts
these rules and principles were accepted by the two belligerent
nation the United State and Japan who were signatories to the two
Convention, Such rule and principles therefore form part of the law
of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined
to the recognition of rule and principle of international law as
continued inn treaties to which our government may have been or
shall be a signatory.
Furthermore when the crimes charged against petitioner were
allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the
United States and with Japan to the right and obligation contained
in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If
at all our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to
remember what we have said in the case of Laurel vs. Misa (76
Phil., 372):
. . . The change of our form government from Commonwealth to
Republic does not affect the prosecution of those charged with the
crime of treason committed during then Commonwealth because
it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and
our government while we were a Commonwealth are triable and
punishable by our present Republic.
Petitioner challenges the participation of two American attorneys
namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court
and the appointment of said attorneys as prosecutors is violative of
our national sovereignty.
In the first place respondent Military Commission is a special
military tribunal governed by a special law and not by the Rules of
court which govern ordinary civil court. It has already been shown
that Executive Order No. 68 which provides for the organization of
such military commission is a valid and constitutional law. There is
nothing in said executive order which requires that counsel
appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that counsel for
the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not
violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes
against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes.
If there has been any relinquishment of sovereignty it has not been
by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least
that we could do in the spirit of comity is to allow them
representation in said trials.
Alleging that the United State is not a party in interest in the case
petitioner challenges the personality of attorneys Hussey and Port
as prosecutors. It is of common knowledge that the United State
and its people have been equally if not more greatly aggrieved by
the crimes with which petitioner stands charged before the
Military Commission. It can be considered a privilege for our
Republic that a leader nation should submit the vindication of the
honor of its citizens and its government to a military tribunal of our
country.
The Military Commission having been convened by virtue of a valid
law with jurisdiction over the crimes charged which fall under the
provisions of Executive Order No. 68, and having said petitioner in
its custody, this Court will not interfere with the due process of
such Military commission.
For all the foregoing the petition is denied with costs de oficio.
EN BANC
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner,
vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila,respondents.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the
validity and constitutionality of a legislative enactment,
fundamental and far-reaching in significance. The enactment poses
questions of due process, police power and equal protection of the
laws. It also poses an important issue of fact, that is whether the
conditions which the disputed law purports to remedy really or
actually exist. Admittedly springing from a deep, militant, and
positive nationalistic impulse, the law purports to protect citizen
and country from the alien retailer. Through it, and within the field
of economy it regulates, Congress attempts to translate national
aspirations for economic independence and national security,
rooted in the drive and urge for national survival and welfare, into
a concrete and tangible measures designed to free the national
retailer from the competing dominance of the alien, so that the
country and the nation may be free from a supposed economic
dependence and bondage. Do the facts and circumstances justify
the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons,
not citizens of the Philippines, and against associations,
partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in said business on
May 15, 1954, who are allowed to continue to engaged therein,
unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons, and
for ten years after the approval of the Act or until the expiration of
term in case of juridical persons; (3) an exception therefrom in
favor of citizens and juridical entities of the United States; (4) a
provision for the forfeiture of licenses (to engage in the retail
business) for violation of the laws on nationalization, control
weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business to
present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other
matters, the nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail
business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien
residents corporations and partnerships adversely affected by the
provisions of Republic Act. No. 1180, brought this action to obtain
a judicial declaration that said Act is unconstitutional, and to enjoin
the Secretary of Finance and all other persons acting under him,
particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act,
contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property
without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act
violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission
by aliens of their retail business thru hereditary succession, and
those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit
of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the
Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila
contend that: (1) the Act was passed in the valid exercise of the
police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the
Act has only one subject embraced in the title; (3) no treaty or
international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property
is not impaired, and the institution of inheritance is only of
statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of
the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But
before proceeding to the consideration and resolution of the
ultimate issue involved, it would be well to bear in mind certain
basic and fundamental, albeit preliminary, considerations in the
determination of the ever recurrent conflict between police power
and the guarantees of due process and equal protection of the
laws. What is the scope of police power, and how are the due
process and equal protection clauses related to it? What is the
province and power of the legislature, and what is the function and
duty of the courts? These consideration must be clearly and
correctly understood that their application to the facts of the case
may be brought forth with clarity and the issue accordingly
resolved.
It has been said the police power is so far - reaching in scope, that
it has become almost impossible to limit its sweep. As it derives its
existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-
extensive with self-protection and survival, and as such it is the
most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a
modern democratic framework where the demands of society and
of nations have multiplied to almost unimaginable proportions; the
field and scope of police power has become almost boundless, just
as the fields of public interest and public welfare have become
almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of
public interest and welfare in this constantly changing and
progressive world, so we cannot delimit beforehand the extent or
scope of police power by which and through which the State seeks
to attain or achieve interest or welfare. So it is that Constitutions
do not define the scope or extent of the police power of the State;
what they do is to set forth the limitations thereof. The most
important of these are the due process clause and the equal
protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are
found in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or
property without due process of law, nor any person be denied the
equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of
individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of
nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall
be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of
legislation enacted in pursuance of the police power. Is there
public interest, a public purpose; is public welfare involved? Is the
Act reasonably necessary for the accomplishment of the
legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection
with the matter involved; or has there not been a capricious use of
the legislative power? Can the aims conceived be achieved by the
means used, or is it not merely an unjustified interference with
private interest? These are the questions that we ask when the due
process test is applied.
The conflict, therefore, between police power and the guarantees
of due process and equal protection of the laws is more apparent
than real. Properly related, the power and the guarantees are
supposed to coexist. The balancing is the essence or, shall it be
said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and
property, provided there is due process of law; and persons may
be classified into classes and groups, provided everyone is given
the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist
between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper
place and role of the courts? It must not be overlooked, in the first
place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the
policy of the State, is by force of circumstances primarily the judge
of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the
measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous
guardians of individual liberty and right, have nevertheless evinced
a reluctance to interfere with the exercise of the legislative
prerogative. They have done so early where there has been a clear,
patent or palpable arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not supposed to
override legitimate policy, and courts never inquire into the
wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to
delve directly into the issue involved. If the disputed legislation
were merely a regulation, as its title indicates, there would be no
question that it falls within the legitimate scope of legislative
power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as
old as society itself, which from the immemorial has always been
open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they
consume and consume all that they produce, the dealer, of course,
is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and
needing an infinite number of things they do not produce, the
dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's
importance is enhanced. Under modern conditions and standards
of living, in which man's needs have multiplied and diversified to
unlimited extents and proportions, the retailer comes as essential
as the producer, because thru him the infinite variety of articles,
goods and needed for daily life are placed within the easy reach of
consumers. Retail dealers perform the functions of capillaries in
the human body, thru which all the needed food and supplies are
ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer
in the life of the community. He ministers to the resident's daily
needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his
customers around his store with the rice or corn, the fish, the salt,
the vinegar, the spices needed for the daily cooking. He has cloths
to sell, even the needle and the thread to sew them or darn the
clothes that wear out. The retailer, therefore, from the lowly
peddler, the owner of a small sari-sari store, to the operator of a
department store or, a supermarket is so much a part of day-to-
day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country
in the bigger centers of population (Time there was when he was
unknown in provincial towns and villages). Slowly but gradually be
invaded towns and villages; now he predominates in the cities and
big centers of population. He even pioneers, in far away nooks
where the beginnings of community life appear, ministering to the
daily needs of the residents and purchasing their agricultural
produce for sale in the towns. It is an undeniable fact that in many
communities the alien has replaced the native retailer. He has
shown in this trade, industry without limit, and the patience and
forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off
without murmur; insults of ill-bred and insolent neighbors and
customers are made in his face, but he heeds them not, and he
forgets and forgives. The community takes note of him, as he
appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears
to be true to fact, about the controlling and dominant position that
the alien retailer holds in the nation's economy. Food and other
essentials, clothing, almost all articles of daily life reach the
residents mostly through him. In big cities and centers of
population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic,
and scores of other goods and articles. And were it not for some
national corporations like the Naric, the Namarco, the Facomas
and the Acefa, his control over principal foods and products would
easily become full and complete.
Petitioner denies that there is alien predominance and control in
the retail trade. In one breath it is said that the fear is unfounded
and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also
so many unmanageable factors in the retail business make control
virtually impossible. The first argument which brings up an issue of
fact merits serious consideration. The others are matters of
opinion within the exclusive competence of the legislature and
beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put
down the figures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders
with fears and misgivings, and the year of the enactment of the
nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following

tables:
Assets Gross Sales AVERAGE
Year and Retailers No.- Per cent Per cent ASSETS AND GROSS SALES PER ESTABLISHMENT
Pesos Pesos
Nationality Establishments Distribution Distribution
Item
1941: Year and Retailer's Gross Sales
Assets
Nationality (Pesos)
Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74 (Pesos)
Chinese ........... 15,356 118,348,692 32.98 148,813,239 44.21 1941:
Others ............ 1,646 40,187,090 11.20 13,630,239 4.05
Filipino ............................................. 1,878 1,633
1947:
Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03 Chinese .............................................. 7,707 9,691
Chinese ........... 13,774 106,156,218 33.56 205,701,134 41.96 Others ............................................... 24,415 8,281
Others ........... 354 8,761,260 .49 4,927,168 1.01
1947:
1948: (Census)
Filipino .......... 113,631 213,342,264 67.30 467,161,667 60.51 Filipino ............................................. 1,878 2,516

Chinese .......... 12,087 93,155,459 29.38 294,894,227 38.20 Chinese ........................................... 7,707 14,934
Others .......... 422 10,514,675 3.32 9,995,402 1.29 Others .............................................. 24,749 13,919
1949:
1948: (Census)
Filipino .......... 113,659 213,451,602 60.89 462,532,901 53.47
Chinese .......... 16,248 125,223,336 35.72 392,414,875 45.36 Filipino ............................................. 1,878 4,111
Others .......... 486 12,056,365 3.39 10,078,364 1.17 Chinese ............................................. 7,707 24,398
1951:
Others .............................................. 24,916 23,686
Filipino ......... 119,352 224,053,620 61.09 466,058,052 53.07
Chinese .......... 17,429 134,325,303 36.60 404,481,384 46.06 1949:

Others .......... 347 8,614,025 2.31 7,645,327 87 Filipino ............................................. 1,878 4,069

Chinese .............................................. 7,707 24,152

 Others ..............................................
1951:
Filipino .............................................
Chinese .............................................
The above statistics do not include corporations and partnerships,
while the figures on Filipino establishments already include mere
market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests
and gross sales, alien participation has steadily increased during
the years. It is true, of course, that Filipinos have the edge in the
number of retailers, but aliens more than make up for the
numerical gap through their assests and gross sales which average
between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the
alien invests more capital, buys and sells six to seven times more,
and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade,
remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native
investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in
Constitutional convention. —
It is this domination and control, which we believe has been
sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the
existence of this alien dominance and control when they approved
a resolution categorically declaring among other things, that "it is
the sense of the Convention that the public interest requires the
nationalization of the retail trade; . . . ." (II Aruego, The Framing of
the Philippine Constitution, 662-663, quoted on page 67 of
Petitioner.) That was twenty-two years ago; and the events since
then have not been either pleasant or comforting. Dean Sinco of
the University of the Philippines College of Law, commenting on
the patrimony clause of the Preamble opines that the fathers of
our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that
had already brought under their control the commercial and other
economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in
24,807 20,737 Others ...............................................
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
1,877 3,905 Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
7,707 33,207 Department of Commerce and Industry; pp. 18-19 of Answer.)
connection with the nationalistic provisions of the Constitution, he
says:
But there has been a general feeling that alien
dominance over the economic life of the country is not
desirable and that if such a situation should remain,
political independence alone is no guarantee to national
stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the
national economy. Moreover, it is but of recent
formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as the
instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the
struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for
political freedom. Thus . . . it (the Constitution) envisages
an organized movement for the protection of the nation
not only against the possibilities of armed invasion but
also against its economic subjugation by alien interests in
the economic field. (Phil. Political Law by Sinco, 10th ed.,
p. 476.)
Belief in the existence of alien control and predominance is felt in
other quarters. Filipino businessmen, manufacturers and
producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence.
Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National
Convention of Manufacturers and Producers. The man in the street
also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control
but to alien stranglehold. We, therefore, find alien domination and
control to be a fact, a reality proved by official statistics, and felt by
all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a
prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action
24,824 22,033
and thorough organization, alien retailers and merchants can act in
such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or
articles to be made available in the market, and even the choice of
the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of
the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers
and consumers alike can be placed completely at their mercy. This
is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing
article offers bigger profits for its introduction. All that aliens would
do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the
producers or importers of the prescribed article, or its consumers,
find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of
trade is thus curtailed and free enterprise correspondingly
suppressed.
We can even go farther than theoretical illustrations to show the
pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods
to the inconvenience and prejudice of the consuming public, so
much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such
that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for
price control convictions; that they have secret combinations
among themselves to control prices, cheating the operation of the
law of supply and demand; that they have connived to boycott
honest merchants and traders who would not cater or yield to
their demands, in unlawful restraint of freedom of trade and
enterprise. They are believed by the public to have evaded tax
laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous
bribes, indirectly causing the prevalence of graft and corruption in
the Government. As a matter of fact appeals to unscrupulous
aliens have been made both by the Government and by their own
lawful diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above
practices.
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of
the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of
war or other calamity. We do not have here in this country isolated
groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the
distribution of goods and commodities in the communities and big
centers of population. They owe no allegiance or loyalty to the
State, and the State cannot rely upon them in times of crisis or
emergency. While the national holds his life, his person and his
property subject to the needs of his country, the alien may even
become the potential enemy of the State.
f. Law enacted in interest of national economic survival and
security. —
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the
public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the
State insures its existence and security and the supreme welfare of
its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next
question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit.
His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes
his living, or of that spirit of regard, sympathy and consideration
for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he
makes his pile, the earlier can the alien go back to his beloved
country and his beloved kin and countrymen. The experience of
the country is that the alien retailer has shown such utter disregard
for his customers and the people on whom he makes his profit,
that it has been found necessary to adopt the legislation, radical as
it may seem.
Another objection to the alien retailer in this country is that he
never really makes a genuine contribution to national income and
wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that
would help the country's economy and increase national wealth.
The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting
the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as
already pointed out above, their secret manipulations of stocks of
commodities and prices, their utter disregard of the welfare of
their customers and of the ultimate happiness of the people of the
nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the
trade by the nationals, show the existence of real and actual,
positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in
the retail trade measure. These differences are certainly a valid
reason for the State to prefer the national over the alien in the
retail trade. We would be doing violence to fact and reality were
we to hold that no reason or ground for a legitimate distinction can
be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for
distinction. —
The above objectionable characteristics of the exercise of the retail
trade by the aliens, which are actual and real, furnish sufficient
grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's
classification. To this we answer, that this is the prerogative of the
law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated
alike, and as it cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to declare that
the legislature acted within its legitimate prerogative and it can not
declare that the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions
and classifications among persons is not curtailed or denied by the
equal protection of the laws clause. The legislative power admits of
a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classification is without
reasonable basis. In addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic
Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined
the application of equal protection clause to a law sought to be
voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment
does not take from the state the power to classify in the adoption
of police laws, but admits of the exercise of the wide scope of
discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical
nicety, or because in practice it results in some inequality. 3. When
the classification in such a law is called in question, if any state of
facts reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was enacted
must be assumed. 4. One who assails the classification in such a
law must carry the burden of showing that it does not rest upon
any reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid
ground for classification has already been affirmatively decided in
this jurisdiction as well as in various courts in the United States. In
the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the
validity of Act No. 2761 of the Philippine Legislature was in issue,
because of a condition therein limiting the ownership of vessels
engaged in coastwise trade to corporations formed by citizens of
the Philippine Islands or the United States, thus denying the right
to aliens, it was held that the Philippine Legislature did not violate
the equal protection clause of the Philippine Bill of Rights. The
legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid
exercise of the police power, and all presumptions are in favor of
its constitutionality. In substance, we held that the limitation of
domestic ownership of vessels engaged in coastwise trade to
citizens of the Philippines does not violate the equal protection of
the law and due process or law clauses of the Philippine Bill of
Rights. In rendering said decision we quoted with approval the
concurring opinion of Justice Johnson in the case of Gibbons vs.
Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining
acts; as, for example, acts licensing gaming houses, retailers of
spirituous liquors, etc. The act, in this instance, is distinctly of that
character, and forms part of an extensive system, the object of
which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every
commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American
character, that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial
marine, as well as frauds upon the revenue in the trade coastwise,
that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids
a classification otherwise justified simply because the limitation of
the class falls along the lines of nationality. That would be requiring
a higher degree of protection for aliens as a class than for similar
classes than for similar classes of American citizens. Broadly
speaking, the difference in status between citizens and aliens
constitutes a basis for reasonable classification in the exercise of
police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a
statute on the licensing of hawkers and peddlers, which provided
that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid,
for the following reason: It may seem wise to the legislature to
limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the
court cannot question this judgment and conclusion. In Bloomfield
vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented
certain persons, among them aliens, from engaging in the traffic of
liquors, was found not to be the result of race hatred, or in
hospitality, or a deliberate purpose to discriminate, but was based
on the belief that an alien cannot be sufficiently acquainted with
"our institutions and our life as to enable him to appreciate the
relation of this particular business to our entire social fabric", and
was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had
under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to
aliens. It held that plainly irrational discrimination against aliens is
prohibited, but it does not follow that alien race and allegiance
may not bear in some instances such a relation to a legitimate
object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is
clearly wrong; and that latitude must be allowed for the legislative
appraisement of local conditions and for the legislative choice of
methods for controlling an apprehended evil. The case of State vs.
Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at
bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922),
the business of pawn brooking was considered as having
tendencies injuring public interest, and limiting it to citizens is
within the scope of police power. A similar statute denying aliens
the right to engage in auctioneering was also sustained in Wright
vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs.
Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens
are judicially known to have different interests, knowledge,
attitude, psychology and loyalty, hence the prohibitions of issuance
of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional
rights. In Templar vs. Michigan State Board of Examiners, 90 N.W.
1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the
court's findings that the exercise of the business by the aliens does
not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the
issuance of commercial fishing licenses to person ineligible to
citizenship was held void, because the law conflicts with Federal
power over immigration, and because there is no public interest in
the mere claim of ownership of the waters and the fish in them, so
there was no adequate justification for the discrimination. It
further added that the law was the outgrowth of antagonism
toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated
traditionally as natural resources. In Fraser vs. McConway & Tarley
Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a
tax on every employer of foreign-born unnaturalized male persons
over 21 years of age, was declared void because the court found
that there was no reason for the classification and the tax was an
arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State
courts in the United States hold that the distinction between aliens
and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product
of racial antagonism and hostility, and there was no question of
public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70
L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of
account in any language other than English, Spanish or any other
local dialect, but the main reasons for the decisions are: (1) that if
Chinese were driven out of business there would be no other
system of distribution, and (2) that the Chinese would fall prey to
all kinds of fraud, because they would be deprived of their right to
be advised of their business and to direct its conduct. The real
reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law and
on the other hand it would deprive Chinese of something
indispensable for carrying on their business. In Yick Wo vs. Hopkins,
30 L. ed 220 (1885) an ordinance conferring powers on officials to
withhold consent in the operation of laundries both as to persons
and place, was declared invalid, but the court said that the power
granted was arbitrary, that there was no reason for the
discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere
racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a
law prohibiting aliens to engage as hawkers and peddlers was
declared void, because the discrimination bore no reasonable and
just relation to the act in respect to which the classification was
proposed.
The case at bar is radically different, and the facts make them so.
As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help
bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to
the land. These limitations on the qualifications of the aliens have
been shown on many occasions and instances, especially in times
of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home
the reality and significance of the distinction between the alien and
the national, thus:
. . . . It may be judicially known, however, that alien coming into
this country are without the intimate knowledge of our laws,
customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology
from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is
first to their own country, and whose ideals of governmental
environment and control have been engendered and formed
under entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have
said enough so that obviously it cannot be affirmed with absolute
confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of
legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by
legislature decisive. —
We now come to due process as a limitation on the exercise of the
police power. It has been stated by the highest authority in the
United States that:
. . . . And the guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .
xxx xxx x x x So far as the requirement of due process
is concerned and in the absence of other constitutional restriction
a state is free to adopt whatever economic policy may reasonably
be deemed to promote public welfare, and to enforce that policy
by legislation adapted to its purpose. The courts are without
authority either to declare such policy, or, when it is declared by
the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a
court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950,
957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word
"reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to
inquire whether the restriction it imposes on rights secured to
individuals by the Bill of Rights are unreasonable, and not whether
it imposes any restrictions on such rights. . . . x x x xxx x petitioner, which overlooks and ignores the facts and
xx
. . . . A statute to be within this power must also be reasonable in
its operation upon the persons whom it affects, must not be for
the annoyance of a particular class, and must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class, require
such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .”
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389,
395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the
exercise of the police power to regulate the operation of a
business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.”
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary
occupation, one of those privileges long ago recognized as
essential to the orderly pursuant of happiness by free men; that it
is a gainful and honest occupation and therefore beyond the
power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and
premise, i.e., that in this country where the occupation is engaged
in by petitioner, it has been so engaged by him, by the alien in an
honest creditable and unimpeachable manner, without harm or
injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has
found, as we have also found and indicated, that the privilege has
been so grossly abused by the alien, thru the illegitimate use of
pernicious designs and practices, that he now enjoys a
monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by
circumstances, but this, Is the exclusion in the future of aliens from
the retail trade unreasonable. Arbitrary capricious, taking into
account the illegitimate and pernicious form and manner in which
the aliens have heretofore engaged therein? As thus correctly
stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects
private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy
under all circumstances of the means adopted to carry out its
purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be
considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the explanatory
note that accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to
prevent persons who are not citizens of the Philippines from
having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe
no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy
of other people.
In seeking to accomplish the foregoing purpose, we do not propose
to deprive persons who are not citizens of the Philippines of their
means of livelihood. While this bill seeks to take away from the
hands of persons who are not citizens of the Philippines a power
that can be wielded to paralyze all aspects of our national life and
endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.”
If political independence is a legitimate aspiration of a people, then
economic independence is none the less legitimate. Freedom and
liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of
their own race or country. The removal and eradication of the
shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is
impossible to conceive that legislation that seeks to bring it about
can infringe the constitutional limitation of due process. The
attainment of a legitimate aspiration of a people can never be
beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the
sphere of legislative action. —
The framers of the Constitution could not have intended to impose
the constitutional restrictions of due process on the attainment of
such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of
the Constitution must have given to the legislature full authority
and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise
issue now before us, they expressly made their voice clear; they
adopted a resolution expressing their belief that the legislation in
question is within the scope of the legislative power. Thus they
declared the their Resolution:
That it is the sense of the Convention that the public interest
requires the nationalization of retail trade; but it abstain from
approving the amendment introduced by the Delegate for Manila,
Mr. Araneta, and others on this matter because it is convinced that
the National Assembly is authorized to promulgate a law which
limits to Filipino and American citizens the privilege to engage in
the retail trade. (11 Aruego, The Framing of the Philippine
Constitution, quoted on pages 66 and 67 of the Memorandum for
the Petitioner.)
It would do well to refer to the nationalistic tendency manifested
in various provisions of the Constitution. Thus in the preamble, a
principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the
Philippines the exploitation, development and utilization of its
natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for
the operation of the public utility shall be granted except to
citizens of the Philippines." The nationalization of the retail trade is
only a continuance of the nationalistic protective policy laid down
as a primary objective of the Constitution. Can it be said that a law
imbued with the same purpose and spirit underlying many of the
provisions of the Constitution is unreasonable, invalid and
unconstitutional?
The seriousness of the Legislature's concern for the plight of the
nationals as manifested in the approval of the radical measures is,
therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of
the nationals with the complacency and refuse or neglect to adopt
a remedy commensurate with the demands of public interest and
national survival. As the repository of the sovereign power of
legislation, the Legislature was in duty bound to face the problem
and meet, through adequate measures, the danger and threat that
alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals
how tolerant, how reasonable the Legislature has been. The law is
made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the
rest of their lives; and similar recognition of the right to continue is
accorded associations of aliens. The right or privilege is denied to
those only upon conviction of certain offenses. In the deliberations
of the Court on this case, attention was called to the fact that the
privilege should not have been denied to children and heirs of
aliens now engaged in the retail trade. Such provision would defeat
the law itself, its aims and purposes. Beside, the exercise of
legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in
favor of its validity, and though the Court may hold views
inconsistent with the wisdom of the law, it may not annul the
legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation
of due process, is not its reasonableness, but its unreasonableness,
and we find the provisions are not unreasonable. These principles
also answer various other arguments raised against the law, some
of which are: that the law does not promote general welfare; that
thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that
there is no need for the legislation; that adequate replacement is
problematical; that there may be general breakdown; that there
would be repercussions from foreigners; etc. Many of these
arguments are directed against the supposed wisdom of the law
which lies solely within the legislative prerogative; they do not
import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law
is the claim that the title thereof is misleading or deceptive, as it
conceals the real purpose of the bill which is to nationalize the
retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section
21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than
one subject which shall be expressed in the title of the bill.”
What the above provision prohibits is duplicity, that is, if its title
completely fails to appraise the legislators or the public of the
nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to show
the presence of duplicity. It is true that the term "regulate" does
not and may not readily and at first glance convey the idea of
"nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a
broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating
liquors, the Legislature may prohibit the sale of intoxicating liquors.
(Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of
Answer.)
Within the meaning of the Constitution requiring that the subject
of every act of the Legislature shall be stated in the tale, the title to
regulate the sale of intoxicating liquors, etc." sufficiently expresses
the subject of an actprohibiting the sale of such liquors to minors
and to persons in the habit of getting intoxicated; such matters
being properly included within the subject of regulating the sale.
(Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies
some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate
does not ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning when used
in delegating police power in connection with a thing the best or
only efficacious regulation of which involves suppression. (State vs.
Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill;
it has also been said that the title need not be an index to the
entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the Act
in question adopted the more general term "regulate" instead of
"nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were
the title changed from "regulate" to "nationalize" or "prohibit",
there would have been many provisions not falling within the
scope of the title which would have made the Act invalid. The use
of the term "regulate", therefore, is in accord with the principle
governing the drafting of statutes, under which a simple or general
term should be adopted in the title, which would include all other
provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill
should be embraced in its title is to apprise the legislators of the
purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice,
action and study of the legislators or of the public. In the case at
bar it cannot be claimed that the legislators have been appraised
of the nature of the law, especially the nationalization and the
prohibition provisions. The legislators took active interest in the
discussion of the law, and a great many of the persons affected by
the prohibitions in the law conducted a campaign against its
approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must
therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the
supposed violation thereby of the Charter of the United Nations
and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter
imposes no strict or legal obligations regarding the rights and
freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights
contains nothing more than a mere recommendation or a common
standard of achievement for all peoples and all nations (Id. p. 39.)
That such is the import of the United Nations Charter aid of the
Declaration of Human Rights can be inferred the fact that
members of the United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail trade, and in
most nations of the world laws against foreigners engaged in
domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and
the Republic of China of April 18, 1947 is also claimed to be
violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same
terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other
countries, except those of the United States, who are granted
special rights by the Constitution, are all prohibited from engaging
in the retail trade. But even supposing that the law infringes upon
the said treaty, the treaty is always subject to qualification or
amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of
the police power of the State (plaston vs. Pennsylvania, 58 L. ed.
539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed
law was enacted to remedy a real actual threat and danger to
national economy posed by alien dominance and control of the
retail business and free citizens and country from dominance and
control; that the enactment clearly falls within the scope of the
police power of the State, thru which and by which it protects its
own personality and insures its security and future; that the law
does not violate the equal protection clause of the Constitution
because sufficient grounds exist for the distinction between alien
and citizen in the exercise of the occupation regulated, nor the due
process of law clause, because the law is prospective in operation
and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the
wisdom and efficacy of the law to carry out its objectives appear to
us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such
matter falls within the prerogative of the Legislature, with whose
power and discretion the Judicial department of the Government
may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not
misled the legislators or the segment of the population affected;
and that it cannot be said to be void for supposed conflict with
treaty obligations because no treaty has actually been entered into
on the subject and the police power may not be curtailed or
surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical
effects of the law could have been made less harsh in its impact on
the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the
time comes for them to close. Our legal duty, however, is merely to
determine if the law falls within the scope of legislative authority
and does not transcend the limitations of due process and equal
protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they
are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
G.R. No. L-1337, Lo Ching and So Yun Chong Co v. CA and Roman
Catholic Archbishop of Manila, 81 Phil. 601, 46 Off. Gaz. 399
The facts, according to the Court, are as follows: On August 30,
1940, the Archbishop of Manila by the Bank of the Philippine
Islands in lease ceded Lo and So Yun Ching Chong Co. farm with
Nos. 1095 to 1101 R. Hidalgo Street, Manila, under a monthly
income of P500 for the term of three years from the first of
September 1940, extendable to two years (two years upon
agreement of the parties). The tenant occupied the property
establishing therein an hotel. In February 1942, the Japanese army
burst into the farm tenants handing the German Otto Schulze who
occupied until the month of January 1945, the arrival of the army
of liberation. In the first days of February 1945, reoccupied the
farm tenants, paying the appropriate monthly rent. Before the end
of the month of August of the same year, he required landlord to
tenants to vacate the property, and they refused. Therefore, the
lessor September 8, 1945 presented the eviction action in the
Municipal Court of Manila, which on October 8, 1945, condemned
the tenants to vacate the property and pay rent monthly P625
from the first September 1945, more damages in the amount of
P500 and court costs. On appeal, the Court of First Instance of
Manila dictate condemning judgment to vacate the property, pay
their rent of P625 per month from the first of September 1945
until the evicted without ruling on costs. The Court of Appeals in its
decision of January 30, 1947, confirmed this judgment with costs.
Tenants, appellants in this acting, by certiorari, appeal this decision
to the Court, alleging that the Court of Appeals he committed five
errors, two of which, the third and fourth, raise questions of law.
In addition to the allegations made by the appellants and appealed,
lawyers Mr. Dewitt, Perkins and Ponce Enrile, as amici curiae,
submitted its memorandum on October 21, 1947, and attorneys
Messrs. Sese Nabong and also as amici curiae, the in his March 18,
1948.
The review of judgments and decrees of the Court of Appeals is
limited only to cases in which it is not more than of errors or
questions of law. (Rule 46, Art. 2 in connection with Art. 2 Title VIII
of the Constitution of the Republic.) (Against Matthew and Court of
Customs Appeals, 63 Phil., 500.) The jurisdiction of the Court
Supreme is limited to review and examine the errors of law that
may be incurred by the Court of Appeals. (Guico against Mayuga
and others, 63 Jur Fil, 352;. Mamuyac vs Abena, [[1]] 38 Off Gaz,
84,... Meneses against the Commonwealth of the Philippines, [[2]]
40 Off Gaz.. (7th Supp.) 41; Onglengco vs Ozaeta [[3]], 40 Off Gaz
(7th Supp.), 186,... Hernandez vs. Manila Electric Co., [[4]] 40 Off
Gaz 10th Supp... ), 35; Gerio against Gerio, [[5]] 40 Off. Gaz. (10th
Supp.), 53; Garcia Ramos against Yatco, [[6]] 40 Off. Gaz. (10th
Supp.), 124; Zubiri vs. Quijano, [[7]] 2 Off. Gaz, 389.; People vs.
Benitez, [[8]] 1 Off. Gaz, 880.; De las Alas against The People of the
Philippines, RGR No. 49212.)
Only try therefore errors III and IV that raise issues of legal
hermeneutics.
A paragraph of the lease signed by the parties is as follows:
1. The party of the second part Shall Have and hold the said
premises for the full term of three years to be reckoned from
September 1, 1940, but May said period be extended to another
two years upon agreement of the parties. (Record on Appeal, p.
22.)
Regarding the first three years, the terms of the contract are so
precise and so clear that no doubt result. As for the second term of
two years, declare that this extension of the contract two
additional years is optional for lessees may continue to occupy the
property without the landlord give his consent again because it has
already given at the time of granting Contract Exhibit "C"; but are
not required to occupy, if not for them. . Similar in subject, with
Alberto Cruz, 39 Jur Fil, 1015, this Court said:
We believe that the court a quo was in a whole correct in his
interpretation of the contract in question; and, even if it could be
accepted that the interpretation makes superfluous the words
"agreed by both parties," however, this does not give any power to
the significance of the whole sentence. If true the interpretation
that the appellant wishes to adopt, all relative to the extension of
the term would be superfluous clause, because if the extension
would have to only take place under a new agreement that the
parties give the expiry of the original term, to say anything about
extending? Those who are free to grant a lease, you are certainly
also to provide a new one when the previous one has expired,
without having to remind them of their power to do the same by
the insertion of a clause of this kind in the first lease . This would
not only be superfluous, but devoid of meaning. Must the clause
relating to the extension of the lease, if possible, in the sense of
attributing some force.
As we interpret the contracts before us, the parties proposed
expressar that had already agreed that there could be an extension
of the lease, and they had agreed as to the duration of this, thus
giving the defendant the right to option to continue the lease for a
further period, or not to continue the contract on expiry of the
original term.
On account of lease that expired in August 31, 1945, the tenants
stopped having the right to continue occupying the property. This
contract has the force of law between the parties (Article 1091,
Civil Code). "If the lease is made for a fixed period, concludes the
preset day without request." (Article 1565, Civil Code.) The
decision, therefore, the Court of Appeals ordering the tenants to
vacate the property and pay rent of P625 monthly as from the first
of September 1945 until the vacate this match law. (Article 1569,
Civil Code.)
The appellants contend that they are entitled to occupy the
property for three full years; your occupation must be effective,
continuous material; they should not be deprived of the use and
enjoyment of the property; that the appellants are entitled to
deduct from that period of three years, all the time they have left
to enjoy the lease disposition of the Japanese army.
Clearly perfectisimo tenants have the right to occupy the property
for all time and not just lease for three years but for five, according
to the two agreed deadlines, and indeed the landlord received it
and established a business of hotel, and had the full use and
enjoyment of the property before being driven out by the
Japanese. Even more, the landlord is obligated to keep the tenants
in the peaceful enjoyment of the lease for the entire time of the
contract (Article 1554, paragraph 3 Civil Code). But this obligation
does not extend to the end to defend the tenants from the
depredations of the invading hordes. This item is out of power and
the legal obligation of the lessor. Assuming, for a moment, before
the outbreak of war, had a cool smuggled in a hotel room of the
appellants and that despite requests not dislodge wanted, was it
forced the landlord to take the farm to possessor? That intruder
was no holder of the property or holder of the property but the
possession of the tenant peaceful enjoyment. No pretensions
occupied the room with domain: illegal or just wanted to fill the
room for free. Tenants debian direct their action against the
possessor who invaded his right of possession, which the owner
had nothing to answer.
Only if the owner responds that disturbs possession alegal title to
the property. If a third party claiming to have purchased the
property of the landlord, the tenants want to take, they may
require the landlord to defend them. The obligation of the landlord
to ensure the peaceful enjoyment is not in all cases: those in which
only the title of the property has something to do with the
disturbance, when it comes to disturbance of law. When a person
by judicial action you want to deprive them of possession of the
property to tenants, the landlord is obligated to defend them. So
has the 1560 article of the Civil Code: "The landlord is not required
to respond to the perturbation of a third fact merno wounds the
use of the leased property, but the tenant will take direct action
against the disturbing fact there is no disturbance. when the third
party, whether the Administration, as an individual, he has worked
under a law that suits you. "
Manresa, commenting on this provision says:
What do we mean by mere perturbation?, What by disturbance of
law?
The French Code, in its art. 1,725, says the landlord is not required
to ensure the tenant for any inconvenience caused by third parties
who are not entitled to the thing leased, without prejudice to any
claim which the tenant can do on their own behalf; Article 1,726
and that if, on the contrary, the tenant or lessee has been
disturbed in his enjoyment result of an action on the ownership of
the property, is entitled to a proportional reduction in the price of
the lease, having reported that nuisance the owner.
It appears from these provisions that the disturbance caused by a
person not entitled to the thing leased (although it can hold over
different things to keep her relationship), estimate as mere fact,
and that other consisting of the exercise of an action affecting the
ownership of the property, it must be considered as law.
Laurent, explaining these precepts, he says, that what
characterizes the disturbance of law, is that the third party
attempts or affirm that the leased property does not belong to the
landlord. However, he adds, it is possible that a third party
exercising a right that applies to you, disturb the enjoyment of the
tenant: the third party does not intend to have any rights on the
leased property, and in this sense there is no disturbance of law;
the law under which the lessor has leased not attacked, and yet
the enjoyment of the lessee is disturbed. To clarify if the latter
course the landlord should the tenant respondar disturbance, said
according to author distinguishes disruptive acts come from the
Administration or an individual.
If from the Administration, we will have to distinguish again if this
has worked within the circle of his powers, and exceeded or if the
act is illegal, if it happened last, the answer is not doubtful for
Laurent; an illegal act is a way of fact, and the ways of practice are
to be held accountable to the landlord.
Otherwise, that is, the Administration has acted within its powers,
the right of the tenant to go against the landlord and his lack of
action against the Administration, are obvious.
If the disruptive acts come from individuals, Laurent makes the
same distinction when coming from the Administration, if an
individual has acted in the exercise of a right that belongs, or has
overstepped on: the solutions proposed are identical and under
the same grounds. From this it follows that there was no great
need to distinguish between acts of the Administration and
individual acts, to reach such a result.
Later the same Laurent welcomes the following distinctions
Pothier: no disturbance when in fact the third made are not
intended to have any rights in the premises, or with relation to the
property, for example, if they graze their flocks in the leased
property, although without stating who are authorized to do so: it
is legal disturbance, which was the result of a lawsuit brought
before the courts; Judicial disturbance is also, by way of exception,
which takes place when the chase arrendatarioa authors of a
disturbance in fact, they oppose having a right in the thing leased.
Pacifici Mazzoni announces the difference between fact and
disturbance of law, saying that the first occurs when materially
prevents or reduces the enjoyment of the lessee, without the
disturbing claims about the thing or right on your enjoyment, and
second, if has the same aim, along with judicial, extrajudicial acts
well with the tenant's right to the enjoyment answered claiming
legal claims on the thing.
Ricci says two requirements to discomfort in fact to be borne by
the tenant: first, that the cause does not hold any rights to the
leased property, and second, that neither is entitled to that where
the nuisance or disturbance is ; missing any of these two
requirements is disturbance of law.
Our Goyena, commenting on art. 1491 Project 1851, says that in
any contract there liability for acts of God, and such must be
deemed the perturbation of mere fact, like flocks of others are
introduced into the meadow that I have for rent, or I can snatch
night fruit , or violently expelled me from the house I occupy. Later
he adds, that while the attack is not directed against the same
property of the thing and judicially, the tenant is only attacked and
defend the mere touch. (10 Manresa 511-513).
The appellants argue that reoccupied the farm in February 1945
and only resumed business hotel in June because it had to take 400
refugees; repaired the destroyed parts of the building by spending
at least P5, 000, to put it in condition for the hotel business; the
landlord allowed them to do all these things. For such
circumstances - the appellants argue - the landlord has made them
believe that they could occupy the farm for more than seven
months and operate the hotel business for more than 2 months to
recover your investment, and if there was no express, at least ,
there was a tacit authorization. They conclude. Was the landlord
estoppel to claim the completion of the new lease that began in
1945 Februaro This theory is untenable. If the landlord did not
object to the reoccupation by the tenants of the property in
February 1945 and received rent for, has done nothing but respect
the right that had tenants occupy the property because according
to the second additional period, had option undisputed occupy the
property until August 31, 1945. consented If therefore the landlord
that tenants reoccupy the property, was not under the
understanding that the new occupied under tacit agreement but
under the agreement and agreed by the Exhibit "C". If tenants have
made investments that have not been recovered until August 31,
1945, no one but themselves to blame should lie. Debian was
aware that the contract law between the parties and debian end
on August 31 of that year. There is no such estoppel.
Nor is meritorious the claim of the appellants that the
reoccupation by them from the farm in February 1945 for having
the landlord received rent and for having allowed them to make
repairs on the building, there arose a new legal relationship of
lease for a period of over two months and ask the Court
determined that the circumstances attending. In support cited
Article 1128 of the Civil Code which provides that "If no such
indication term obligation, but its nature and circumstances it is
apparent that he wanted granted to the debtor, the court will
determine the length of that."
As already mentioned, the reoccupation of the property in
February was but the continuation of the lease ending in August
31, 1943, consistent with the second additional period of two
years.
Article 1128 of the Civil Code refers to the obligations in general
and does not refer to deadlines on leasing this class because there
is already a contract and special provision is Article 1565 which
reads: "If the lease has been made by given time, the day
concludes default without request. "
In this case, term fixed by the parties - Three years from the first of
September 1940 until August 31, 1943, and an additional two-year
period ending on August 31, 1945 If there were. been a further
period of two years, the reoccupation by tenants in February 1945
had been a new lease for automatic renewal; but as the payment
of rent per month was to be understood that the contract ended at
the end of the month. Article 1581 of the Civil Code expressly
provides that "If it had not fixed term lease means done for years
when it has set an annual rent for months when monthly, monthly
for days when, for days when daily. In any case ceases lease
without special requirement, fulfilled the term. "
The launch of the tenants of the estate by the invading army,
putting in place the German Otto Schulze, few words are enough.
The Hague Convention of 1907 does not authorize an occupying
army to seize private property in the invaded territory. On the
contrary, provides that. "Family honor and rights, the lives of
persons, and private property, as well as religious convictions and
practice, must be respected Private property can not be
confiscated." (Article 46.) And even the farm was used as army
barracks, and there are indications that it seized by military
necessity, it can be deduced that the Japanese soldiers placed the
farm, not in the legitimate exercise the authority of an occupying
army, but spurred on by excessive and uncontrollable desire to
seize other people. Tenants therefore should have directed his
claim against the German Otto Schulze and the soldiers gave him
possession of the property. If the occupation of Otto Schulze was a
simple case of detainer for possession, what right have the tenants
of the lease term discount it? Is not this shifting the liability Otto
Schulze and Japanese soldiers, who are the true bearers in the
landlord? Nor is there anything in the record to show that the
soldiers occupied the farm with pretensions domain. If the
Japanese told the German Otto Schulze income should pay the
owner of the property, it proves to who had not wanted to hurt
you; the action was directed to the tenant, the owner of the
possession, use and enjoyment of the lease. The deprivation of
possession of tenants by Japanese soldiers was a simple
perturbation and the mere fact that the landlord does not respond,
according express provision of Article 1560 of the Civil Code. Under
no conceptio should be reduced, therefore, the period of illegal
occupation of Otto Schulze, the lease term agreed by the parties.
The appellants argue that the invasion of the Japanese can not be
regarded as a mere disturbance in fact, that did not affect only the
leased property but also to other properties in the Philippines. That
is true; but is no legal reason for tenants not suffer a
corresponding share of the depredations caused by pjaponeses
hordes; is no reason for tenants to move weight will damage them
shoulder the lessor.
In support of the theory that the court may extend the term of the
occupancy of the property by the tenant to a period of time equal
to the time they were deprived of possession by the Japanese
army, the appellants rely on the Act No. 720 Commonwealth that
provides for extension of time within which you can make, perform
or comply with any term, condition or stipulation expressed in the
mineral, forest and public land concessions. Without this law, any
extension of the term would be illegal: the terms of the grant are
inflexible and must be met. In this case, the law between the
parties is the lease Exhibito C. If the landlord fails to grant paves a
third term, by tacit agreement or expressly, the eviction of the
appellants is forced.
The appellants contend that in this case, the Court is to grant
additional time dbe accordance with Article 1124 of the Civil Code.
This contention is erroneous. The Court is not the landlord or agent
of the landlord; therefore can not extend the lease term in
contravention of the precise terms of the Exhibito C. The lessor or
the Archbishop of Manila, as the government in the matter of
mineral, forest and mineral concessions, which may be granted is
another term and not the Court.
The judgment appealed from is affirmed. Paid recurring costs in all
instances....
SECOND DIVISION
[G.R. NO. 139325 : April 12, 2005]
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO,
SR. MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their
behalf and on behalf of the Class Plaintiffs in Class Action No. MDL
840, United States District Court of Hawaii, Petitioner, v. HON.
SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of
Branch 137, Regional Trial Court, Makati City, and the ESTATE OF
FERDINAND E. MARCOS, through its court appointed legal
representatives in Class Action MDL 840, United States District Court
of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos,
Jr., Respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we
have yet to finish weeding out its bitter crop. While the restoration
of freedom and the fundamental structures and processes of
democracy have been much lauded, according to a significant
number, the changes, however, have not sufficiently healed the
colossal damage wrought under the oppressive conditions of the
martial law period. The cries of justice for the tortured, the
murdered, and the desaparecidos arouse outrage and sympathy in
the hearts of the fair-minded, yet the dispensation of the
appropriate relief due them cannot be extended through the same
caprice or whim that characterized the ill-wind of martial rule. The
damage done was not merely personal but institutional, and the
proper rebuke to the iniquitous past has to involve the award of
reparations due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights
violations1 who, deprived of the opportunity to directly confront
the man who once held absolute rule over this country, have
chosen to do battle instead with the earthly representative, his
estate. The clash has been for now interrupted by a trial court
ruling, seemingly comported to legal logic, that required the
petitioners to pay a whopping filing fee of over Four Hundred
Seventy-Two Million Pesos (P472,000,000.00) in order that they be
able to enforce a judgment awarded them by a foreign
court. There is an understandable temptation to cast the struggle
within the simplistic confines of a morality tale, and to employ
short-cuts to arrive at what might seem the desirable solution. But
easy, reflexive resort to the equity principle all too often leads to a
result that may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this
case will comfort those who maintain that our substantive and
procedural laws, for all their perceived ambiguity and susceptibility
to myriad interpretations, are inherently fair and just. The relief
sought by the petitioners is expressly mandated by our laws and
conforms to established legal principles. The granting of this
petition for certiorari is warranted in order to correct the legally
infirm and unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a
complaint was filed with the United States District Court (US
District Court), District of Hawaii, against the Estate of former
Philippine President Ferdinand E. Marcos (Marcos Estate). The
action was brought forth by ten Filipino citizens2 who each alleged
having suffered human rights abuses such as arbitrary detention,
torture and rape in the hands of police or military forces during the
Marcos regime.3 The Alien Tort Act was invoked as basis for the US
District Court's jurisdiction over the complaint, as it involved a suit
by aliens for tortious violations of international law.4 These
plaintiffs brought the action on their own behalf and on behalf of a
class of similarly situated individuals, particularly consisting of all
current civilian citizens of the Philippines, their heirs and
beneficiaries, who between 1972 and 1987 were tortured,
summarily executed or had disappeared while in the custody of
military or paramilitary groups. Plaintiffs alleged that the class
consisted of approximately ten thousand (10,000) members;
hence, joinder of all these persons was impracticable.
The institution of a class action suit was warranted under Rule
23(a) and (b)(1)(B) of the US Federal Rules of Civil Procedure, the
provisions of which were invoked by the plaintiffs. Subsequently,
the US District Court certified the case as a class action and created
three (3) sub-classes of torture, summary execution and
disappearance victims.5 Trial ensued, and subsequently a jury
rendered a verdict and an award of compensatory and exemplary
damages in favor of the plaintiff class. Then, on 3 February 1995,
the US District Court, presided by Judge Manuel L. Real, rendered a
Final Judgment (Final Judgment) awarding the plaintiff class a total
of One Billion Nine Hundred Sixty Four Million Five Thousand Eight
Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90).
The Final Judgment was eventually affirmed by the US Court of
Appeals for the Ninth Circuit, in a decision rendered on 17
December 1996.6
On 20 May 1997, the present petitioners filed Complaint with the
Regional Trial Court, City of Makati (Makati RTC) for the
enforcement of the Final Judgment. They alleged that they are
members of the plaintiff class in whose favor the US District Court
awarded damages.7 They argued that since the Marcos Estate
failed to file a petition for certiorari with the US Supreme Court
after the Ninth Circuit Court of Appeals had affirmed the Final
Judgment, the decision of the US District Court had become final
and executory, and hence should be recognized and enforced in
the Philippines, pursuant to Section 50, Rule 39 of the Rules of
Court then in force.8
On 5 February 1998, the Marcos Estate filed a motion to dismiss,
raising, among others, the non-payment of the correct filing
fees. It alleged that petitioners had only paid Four Hundred Ten
Pesos (P410.00) as docket and filing fees, notwithstanding the fact
that they sought to enforce a monetary amount of damages in the
amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7,
pertaining to the proper computation and payment of docket
fees. In response, the petitioners claimed that an action for the
enforcement of a foreign judgment is not capable of pecuniary
estimation; hence, a filing fee of only Four Hundred Ten Pesos
(P410.00) was proper, pursuant to Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier
Ranada10 of the Makati RTC issued the subject Order dismissing the
complaint without prejudice. Respondent judge opined that
contrary to the petitioners' submission, the subject matter of the
complaint was indeed capable of pecuniary estimation, as it
involved a judgment rendered by a foreign court ordering the
payment of definite sums of money, allowing for easy
determination of the value of the foreign judgment. On that score,
Section 7(a) of Rule 141 of the Rules of Civil Procedure would find
application, and the RTC estimated the proper amount of filing fees
was approximately Four Hundred Seventy Two Million Pesos,
which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration,
which Judge Ranada denied in an Order dated 28 July 1999. From
this denial, petitioners filed a Petition for Certiorari under Rule 65
assailing the twin orders of respondent judge.11 They prayed for
the annulment of the questioned orders, and an order directing
the reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.
Petitioners submit that their action is incapable of pecuniary
estimation as the subject matter of the suit is the enforcement of a
foreign judgment, and not an action for the collection of a sum of
money or recovery of damages. They also point out that to require
the class plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render inutile
the liberal construction ordained by the Rules of Court, as required
by Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that "Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty," a mandate which is
essentially defeated by the required exorbitant filing fee. The
adjudicated amount of the filing fee, as arrived at by the RTC, was
characterized as indisputably unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to
intervene in this case.12 It urged that the petition be granted and a
judgment rendered, ordering the enforcement and execution of
the District Court judgment in accordance with Section 48, Rule 39
of the 1997 Rules of Civil Procedure. For the CHR, the Makati RTC
erred in interpreting the action for the execution of a foreign
judgment as a new case, in violation of the principle that once a
case has been decided between the same parties in one country
on the same issue with finality, it can no longer be relitigated again
in another country.13 The CHR likewise invokes the principle of
comity, and of vested rights.
The Court's disposition on the issue of filing fees will prove a useful
jurisprudential guidepost for courts confronted with actions
enforcing foreign judgments, particularly those lodged against an
estate. There is no basis for the issuance a limited pro hac
vice ruling based on the special circumstances of the petitioners as
victims of martial law, or on the emotionally-charged allegation of
human rights abuses.
An examination of Rule 141 of the Rules of Court readily evinces
that the respondent judge ignored the clear letter of the law when
he concluded that the filing fee be computed based on the total
sum claimed or the stated value of the property in litigation.
In dismissing the complaint, the respondent judge relied on Section
7(a), Rule 141 as basis for the computation of the filing fee of
over P472 Million. The provision states:
SEC. 7. Clerk of Regional Trial Court. -
(a) For filing an action or a permissive counterclaim or money claim
against an estate not based on judgment, or for filing with leave of
court a third-party, fourth-party, etc., complaint, or a complaint in
intervention, and for all clerical services in the same time, if the
total sum claimed, exclusive of interest, or the started value of the
property in litigation, is:
1. Less than P 100,00.00
2. P 100,000.00 or more but less than P150,000.00
3. P 150,000.00 or more but less than P200,000.00
4. P 200,000.00 or more but less than P250,000.00
5. P 250,000.00 or more but less than P300,00.00
6. P 300,000.00 or more but not more than P400,000.00
7. P 350,000.00 or more but not more than P400,000.00
8. For each P 1,000.00 in excess of P400,000.00
(Emphasis supplied)ςrαlαωlιbrαrÿ
Obviously, the above-quoted provision covers, on one hand,
ordinary actions, permissive counterclaims, third-party, etc.
complaints and complaints-in-interventions, and on the other,
money claims against estates which are not based on
judgment. Thus, the relevant question for purposes of the present
petition is whether the action filed with the lower court is a
"money claim against an estate not based on judgment."
Petitioners' complaint may have been lodged against an estate, but
it is clearly based on a judgment, the Final Judgment of the US
District Court. The provision does not make any distinction
between a local judgment and a foreign judgment, and where the
law does not distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances
wherein the filing fee is computed on the basis of the amount of
the relief sought, or on the value of the property in litigation. The
filing fee for requests for extrajudicial foreclosure of mortgage is
based on the amount of indebtedness or the mortgagee's expressly recognized in our jurisprudence beginning with Ingenholl
claim.14 In special proceedings involving properties such as for the v. Walter E. Olsen & Co.19 The conditions required by the
allowance of wills, the filing fee is again based on the value of the Philippines for recognition and enforcement of a foreign judgment
property.15 The aforecited rules evidently have no application to were originally contained in Section 311 of the Code of Civil
petitioners' complaint. Procedure, which was taken from the California Code of Civil
Petitioners rely on Section 7(b), particularly the proviso on actions Procedure which, in turn, was derived from the California Act of
where the value of the subject matter cannot be estimated. The March 11, 1872.20 Remarkably, the procedural rule now outlined in
provision reads in full: Section 48, Rule 39 of the Rules of Civil Procedure has remained
SEC. 7. Clerk of Regional Trial Court. - unchanged down to the last word in nearly a century. Section 48
(b) For filing states:
1. Actions where the value
of the subject matter SEC. 48. Effect of foreign judgments. 'The effect of a judgment
cannot be estimated --- P 600.00 of a tribunal of a foreign country, having jurisdiction to pronounce
2. Special civil actions except the judgment is as follows:
judicial foreclosure which
shall be governed by
(a) In case of a judgment upon a specific thing, the judgment is
paragraph (a) above --- P 600.00
conclusive upon the title to the thing;
3. All other actions not
'
involving property - - - P 500.00
P 600.00
In a real action,
' the assessedPvalue of the property, or if there is
800.00 (b) In case of a judgment against a person, the judgment is
none, the estimated value, thereof shall be alleged by the claimant presumptive evidence of a right as between the parties and their
and shall be' the basis in computing
P 1,000.00the fees. successors in interest by a subsequent title;
' P 1,500.00
It is worth noting that the provision also provides that in real In either case, the judgment or final order may be repelled by
actions, the' assessed valuePor1,750.00
estimated value of the property shall evidence of a want of jurisdiction, want of notice to the party,
be alleged by the claimant and shall be the basis in computing the collusion, fraud, or clear mistake of law or fact.
' P 2,000.00
fees. Yet again, this provision does not apply in the case at bar. A
real action 'is one where the plaintiff seeks the recovery of real
P 2,250.00 There is an evident distinction between a foreign judgment in an
property or an action affecting title to or recovery of possession of action in rem and one in personam. For an action in rem, the
' 16 Neither the complaint
real property. P 10.00 nor the award of damages foreign judgment is deemed conclusive upon the title to the thing,
adjudicated by the US District Court involves any real property of while in an action in personam, the foreign judgment is
the Marcos Estate. presumptive, and not conclusive, of a right as between the parties
and their successors in interest by a subsequent title.21 However, in
Thus, respondent judge was in clear and serious error when he both cases, the foreign judgment is susceptible to impeachment in
concluded that the filing fees should be computed on the basis of our local courts on the grounds of want of jurisdiction or notice to
the schematic table of Section 7(a), as the action involved pertains the party,22 collusion, fraud,23or clear mistake of law or
to a claim against an estate based on judgment. What provision, if fact.24 Thus, the party aggrieved by the foreign judgment is entitled
any, then should apply in determining the filing fees for an action to defend against the enforcement of such decision in the local
to enforce a foreign judgment? forum. It is essential that there should be an opportunity to
challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy.25
To resolve this question, a proper understanding is required on the
nature and effects of a foreign judgment in this jurisdiction.
It is clear then that it is usually necessary for an action to be filed in
order to enforce a foreign judgment26, even if such judgment has
The rules of comity, utility and convenience of nations have
conclusive effect as in the case of in remactions, if only for the
established a usage among civilized states by which final judgments
purpose of allowing the losing party an opportunity to challenge
of foreign courts of competent jurisdiction are reciprocally
the foreign judgment, and in order for the court to properly
respected and rendered efficacious under certain conditions that
determine its efficacy.27Consequently, the party attacking a foreign
may vary in different countries.17 This principle was prominently
judgment has the burden of overcoming the presumption of its
affirmed in the leading American case of Hilton v. Guyot18 and
validity.28
The rules are silent as to what initiatory procedure must be
undertaken in order to enforce a foreign judgment in the
Philippines. But there is no question that the filing of a civil
complaint is an appropriate measure for such purpose. A civil
action is one by which a party sues another for the enforcement or
protection of a right,29 and clearly an action to enforce a foreign
judgment is in essence a vindication of a right prescinding either
from a "conclusive judgment upon title" or the "presumptive
evidence of a right."30 Absent perhaps a statutory grant of
jurisdiction to a quasi-judicial body, the claim for enforcement of
judgment must be brought before the regular courts.31
There are distinctions, nuanced but discernible, between the cause
of action arising from the enforcement of a foreign judgment, and
that arising from the facts or allegations that occasioned the
foreign judgment. They may pertain to the same set of facts, but
there is an essential difference in the right-duty correlatives that
are sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates from
the violation of the right of the complainant through the act or
omission of the respondent. On the other hand, in a complaint for
the enforcement of a foreign judgment awarding damages from
the same tortfeasor, for the violation of the same right through the
same manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the
above example, the complainant will have to establish before the
court the tortious act or omission committed by the tortfeasor,
who in turn is allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus conducted
on the facts, and from there the right to and amount of damages
are assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself,
and not the facts from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the
service of personal notice, collusion, fraud, or mistake of fact or
law. The limitations on review is in consonance with a strong and
pervasive policy in all legal systems to limit repetitive litigation on
claims and issues.32 Otherwise known as the policy of preclusion, it
seeks to protect party expectations resulting from previous
litigation, to safeguard against the harassment of defendants, to
insure that the task of courts not be increased by never-ending
litigation of the same disputes, and - in a larger sense - to promote
what Lord Coke in the Ferrer's Case of 1599 stated to be the goal of
all law: "rest and quietness."33 If every judgment of a foreign court
were reviewable on the merits, the plaintiff would be forced back
on his/her original cause of action, rendering immaterial the
previously concluded litigation.34
Petitioners appreciate this distinction, and rely upon it to support
the proposition that the subject matter of the complaintthe
enforcement of a foreign judgmentis incapable of pecuniary
estimation. Admittedly the proposition, as it applies in this case, is
counter-intuitive, and thus deserves strict scrutiny. For in all
practical intents and purposes, the matter at hand is capable of
pecuniary estimation, down to the last cent. In the
assailed Order, the respondent judge pounced upon this point
without equivocation:
The Rules use the term "where the value of the subject matter
cannot be estimated." The subject matter of the present case is
the judgment rendered by the foreign court ordering defendant to
pay plaintiffs definite sums of money, as and for compensatory
damages. The Court finds that the value of the foreign judgment
can be estimated; indeed, it can even be easily determined. The
Court is not minded to distinguish between the enforcement of a
judgment and the amount of said judgment, and separate the two,
for purposes of determining the correct filing fees. Similarly, a
plaintiff suing on promissory note for P1 million cannot be allowed
to pay only P400 filing fees (sic), on the reasoning that the subject
matter of his suit is not the P1 million, but the enforcement of the
promissory note, and that the value of such "enforcement" cannot
be estimated.35
The jurisprudential standard in gauging whether the subject matter
of an action is capable of pecuniary estimation is well-entrenched.
The Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo
v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of
which is not capable of pecuniary estimation this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the recovery
of a sum of money, the claim is considered capable of pecuniary
estimation, and whether jurisdiction is in the municipal courts or in
the courts of first instance would depend on the amount of the
claim. However, where the basic issue is something other than the
right to recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief sought, this
Court has considered such actions as cases where the subject of
the litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance (now Regional Trial
Courts).
On the other hand, petitioners cite the ponencia of Justice JBL
Reyes in Lapitan v. Scandia,36from which the rule
in Singsong and Raymundo actually derives, but which incorporates
this additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other than the
right to recover a sum of money, where the money claim is purely
incidental to, or a consequence of, the principal relief sought, like
in suits to have the defendant perform his part of the contract
(specific performance) and in actions for support, or for annulment
of judgment or to foreclose a mortgage, this Court has considered
such actions as cases where the subject of the litigation may not be
estimated in terms of money, and are cognizable exclusively by
courts of first instance.37
Petitioners go on to add that among the actions the Court has
recognized as being incapable of pecuniary estimation include
legality of conveyances and money deposits,38 validity of a
mortgage,39 the right to support,40 validity of
documents,41 rescission of contracts,42 specific performance,43 and
validity or annulment of judgments.44 It is urged that an action for
enforcement of a foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that
while the subject matter of the action is undoubtedly the
enforcement of a foreign judgment, the effect of a providential
award would be the adjudication of a sum of money. Perhaps in
theory, such an action is primarily for "the enforcement of the
foreign judgment," but there is a certain obtuseness to that sort of
argument since there is no denying that the enforcement of the
foreign judgment will necessarily result in the award of a definite
sum of money.
But before we insist upon this conclusion past beyond the point of
reckoning, we must examine its possible ramifications. Petitioners
raise the point that a declaration that an action for enforcement of
foreign judgment may be capable of pecuniary estimation might
lead to an instance wherein a first level court such as the Municipal
Trial Court would have jurisdiction to enforce a foreign judgment.
But under the statute defining the jurisdiction of first level courts,
B.P. 129, such courts are not vested with jurisdiction over actions
for the enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in civil cases. -
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate
proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in Metro
Manila where such personal property, estate, or amount of the
demand does not exceed Two hundred thousand pesos
(P200,000.00) exclusive of interest damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which
must be specifically alleged: Provided, That where there are
several claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of
action, irrespective of whether the causes of action arose out of
the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and
unlawful detainer: Provided, That when, in such cases, the
defendant raises the question of ownership in his pleadings and
the question of possession cannot be resolved without deciding
the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve
title to, or possession of, real property, or any interest therein
where the assessed value of the property or interest therein does
not exceed Twenty thousand pesos (P20,000.00) or, in civil actions
in Metro Manila, where such assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property shall be determined by
the assessed value of the adjacent lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of
action or subject matter pertains to an assertion of rights and
interests over property or a sum of money. But as earlier pointed
out, the subject matter of an action to enforce a foreign judgment
is the foreign judgment itself, and the cause of action arising from
the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant
complaint for enforcement of a foreign judgment, even if capable
of pecuniary estimation, would fall under the jurisdiction of the
Regional Trial Courts, thus negating the fears of the petitioners.
Indeed, an examination of the provision indicates that it can be
relied upon as jurisdictional basis with respect to actions for
enforcement of foreign judgments, provided that no other court or
office is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. - Regional Trial Courts shall
exercise exclusive original jurisdiction: xxx
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction or any court,
tribunal, person or body exercising judicial or quasi-judicial
functions.
Thus, we are comfortable in asserting the obvious, that the
complaint to enforce the US District Court judgment is one capable
of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the
ambit of Section 7(a) of Rule 141. What provision then governs the
proper computation of the filing fees over the instant complaint?
For this case and other similarly situated instances, we find that it
is covered by Section 7(b)(3), involving as it does, "other actions
not involving property."
Notably, the amount paid as docket fees by the petitioners on the
premise that it was an action incapable of pecuniary estimation
corresponds to the same amount required for "other actions not
involving property." The petitioners thus paid the correct amount
of filing fees, and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.
There is another consideration of supreme relevance in this case,
one which should disabuse the notion that the doctrine affirmed in
this decision is grounded solely on the letter of the procedural
rule. We earlier adverted to the the internationally recognized
policy of preclusion,46 as well as the principles of comity, utility and
convenience of nations47 as the basis for the evolution of the rule
calling for the recognition and enforcement of foreign judgments.
The US Supreme Court in Hilton v. Guyot48 relied heavily on the
concept of comity, as especially derived from the landmark treatise
of Justice Story in his Commentaries on the Conflict of Laws of
1834.49 Yet the notion of "comity" has since been criticized as one
"of dim contours"50 or suffering from a number of fallacies.51 Other
conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of
obligation.52
There have been attempts to codify through treaties or multilateral
agreements the standards for the recognition and enforcement of
foreign judgments, but these have not borne fruition. The
members of the European Common Market accede to
the Judgments Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to recognition such as
reciprocity and révision au fond.53 The most ambitious of these
attempts is the Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters, prepared in
1966 by the Hague Conference of International Law.54 While it has
not received the ratifications needed to have it take effect,55 it is
recognized as representing current scholarly thought on the
topic.56 Neither the Philippines nor the United States are
signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind
the recognition and enforcement of foreign judgments or a
universal treaty rendering it obligatory force, there is consensus
that the viability of such recognition and enforcement is essential.
Steiner and Vagts note:
. . . The notion of unconnected bodies of national law on private
international law, each following a quite separate path, is not one
conducive to the growth of a transnational community
encouraging travel and commerce among its members. There is a
contemporary resurgence of writing stressing the identity or
similarity of the values that systems of public and private
international law seek to further - a community interest in
common, or at least reasonable, rules on these matters in national
legal systems. And such generic principles as reciprocity play an
important role in both fields.57
Salonga, whose treatise on private international law is of
worldwide renown, points out:
Whatever be the theory as to the basis for recognizing foreign
judgments, there can be little dispute that the end is to protect the
reasonable expectations and demands of the parties. Where the
parties have submitted a matter for adjudication in the court of
one state, and proceedings there are not tainted with irregularity,
they may fairly be expected to submit, within the state or
elsewhere, to the enforcement of the judgment issued by the
court.58
There is also consensus as to the requisites for recognition of a
foreign judgment and the defenses against the enforcement
thereof. As earlier discussed, the exceptions enumerated in Section
48, Rule 39 have remain unchanged since the time they were
adapted in this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section 48 are but a
restatement of generally accepted principles of international law.
Section 98 of The Restatement, Second, Conflict of Laws, states
that "a valid judgment rendered in a foreign nation after a fair trial
in a contested proceeding will be recognized in the United States,"
and on its face, the term "valid" brings into play requirements such
notions as valid jurisdiction over the subject matter and
parties.59 Similarly, the notion that fraud or collusion may preclude
the enforcement of a foreign judgment finds affirmation with
foreign jurisprudence and commentators,60 as well as the doctrine
that the foreign judgment must not constitute "a clear mistake of
law or fact."61 And finally, it has been recognized that "public
policy" as a defense to the recognition of judgments serves as an
umbrella for a variety of concerns in international practice which
may lead to a denial of recognition.62
The viability of the public policy defense against the enforcement
of a foreign judgment has been recognized in this
jurisdiction.63 This defense allows for the application of local
standards in reviewing the foreign judgment, especially when such
judgment creates only a presumptive right, as it does in cases
wherein the judgment is against a person.64 The defense is also
recognized within the international sphere, as many civil law
nations adhere to a broad public policy exception which may result
in a denial of recognition when the foreign court, in the light of the
choice-of-law rules of the recognizing court, applied the wrong law
to the case.65 The public policy defense can safeguard against
possible abuses to the easy resort to offshore litigation if it can be
demonstrated that the original claim is noxious to our
constitutional values.
There is no obligatory rule derived from treaties or conventions
that requires the Philippines to recognize foreign judgments, or
allow a procedure for the enforcement thereof. However,
generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of
the land even if they do not derive from treaty obligations.66 The
classical formulation in international law sees those customary
rules accepted as binding result from the combination two
elements: the established, widespread, and consistent practice on
the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law
requiring it.67
While the definite conceptual parameters of the recognition and
enforcement of foreign judgments have not been authoritatively
established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of
international law.68 As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations of
varying degrees. The fact that there is no binding universal treaty
governing the practice is not indicative of a widespread rejection of
the principle, but only a disagreement as to the imposable specific
rules governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the
procedure for recognition and enforcement is embodied in the
rules of law, whether statutory or jurisprudential, adopted in
various foreign jurisdictions. In the Philippines, this is evidenced
primarily by Section 48, Rule 39 of the Rules of Court which has
existed in its current form since the early 1900s. Certainly, the
Philippine legal system has long ago accepted into its jurisprudence
and procedural rules the viability of an action for enforcement of
foreign judgment, as well as the requisites for such valid
enforcement, as derived from internationally accepted
doctrines. Again, there may be distinctions as to the rules adopted
by each particular state,69 but they all prescind from the premise
that there is a rule of law obliging states to allow for, however
generally, the recognition and enforcement of a foreign judgment.
The bare principle, to our mind, has attained the status of opinio
juris in international practice.
This is a significant proposition, as it acknowledges that the
procedure and requisites outlined in Section 48, Rule 39 derive
their efficacy not merely from the procedural rule, but by virtue of
the incorporation clause of the Constitution. Rules of procedure
are promulgated by the Supreme Court,70 and could very well be
abrogated or revised by the high court itself. Yet the Supreme
Court is obliged, as are all State components, to obey the laws of
the land, including generally accepted principles of international
law which form part thereof, such as those ensuring the qualified
recognition and enforcement of foreign judgments.71
Thus, relative to the enforcement of foreign judgments in the
Philippines, it emerges that there is a general right recognized
within our body of laws, and affirmed by the Constitution, to seek
recognition and enforcement of foreign judgments, as well as a
right to defend against such enforcement on the grounds of want
of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment
in this country merely due to an exhorbitant assessment of docket
fees is alien to generally accepted practices and principles in
international law. Indeed, there are grave concerns in conditioning
the amount of the filing fee on the pecuniary award or the value of
the property subject of the foreign decision. Such pecuniary award
will almost certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the
forum.72 The vagaries of inflation, as well as the relative low-
income capacity of the Filipino, to date may very well translate into
an award virtually unenforceable in this country, despite its
integral validity, if the docket fees for the enforcement thereof
were predicated on the amount of the award sought to be
enforced. The theory adopted by respondent judge and the
Marcos Estate may even lead to absurdities, such as if applied to
an award involving real property situated in places such as the
United States or Scandinavia where real property values are
inexorably high. We cannot very well require that the filing fee be
computed based on the value of the foreign property as
determined by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject matter of an
action for enforcement of a foreign judgment is the foreign
judgment itself, and not the right-duty correlatives that resulted in
the foreign judgment. In this particular circumstance, given that
the complaint is lodged against an estate and is based on the US
District Court's Final Judgment, this foreign judgment may, for
purposes of classification under the governing procedural rule, be
deemed as subsumed under Section 7(b)(3) of Rule 141, i.e., within
the class of "all other actions not involving property." Thus, only
the blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the
Constitution, which states that "[F]ree access to the courts and
quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty." Since the provision is
among the guarantees ensured by the Bill of Rights, it certainly
gives rise to a demandable right. However, now is not the occasion
to elaborate on the parameters of this constitutional right. Given
our preceding discussion, it is not necessary to utilize this provision
in order to grant the relief sought by the petitioners. It is axiomatic
that the constitutionality of an act will not be resolved by the
courts if the controversy can be settled on other grounds73 or
unless the resolution thereof is indispensable for the
determination of the case.74
One more word. It bears noting that Section 48, Rule 39
acknowledges that the Final Judgment is not conclusive yet, but
presumptive evidence of a right of the petitioners against the
Marcos Estate. Moreover, the Marcos Estate is not precluded to
present evidence, if any, of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact. This
ruling, decisive as it is on the question of filing fees and no other,
does not render verdict on the enforceability of the Final
Judgment before the courts under the jurisdiction of the
Philippines, or for that matter any other issue which may
legitimately be presented before the trial court. Such issues are to
be litigated before the trial court, but within the confines of the
matters for proof as laid down in Section 48, Rule 39. On the other
hand, the speedy resolution of this claim by the trial court is
encouraged, and contumacious delay of the decision on the merits
will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are
NULLIFIED and SET ASIDE, and a new order REINSTATING Civil Case
No. 97-1052 is hereby issued. No costs.
SO ORDERED.
EN BANC
August 15, 1961
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the
Philippine Bar without taking the examination. ARTURO EFREN
GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in
the Philippines without submitting to the required bar
examinations. In his verified petition, he avers, among others, that
he is a Filipino citizen born in Bacolor City, Province of Negros
Occidental, of Filipino parentage; that he had taken and finished in
Spain, the course of "Bachillerato Superior"; that he was approved,
selected and qualified by the "Instituto de Cervantes" for
admission to the Central University of Madrid where he studied
and finished the law course graduating there as "Licenciado En
Derecho"; that thereafter he was allowed to practice the law
profession in Spain; and that under the provision of the Treaty of
Academic Degrees and the Exercise of Professions between the
Republic of the Philippines and the Spanish state, he is entitled to
practice the law profession in the Philippines without submitting to
the required bar examinations.
After due consideration, the Court resolved to deny the petition on
the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the
Exercise of Professions between the Republic of the Philippines
and the Spanish State can not be invoked by applicant. Under
Article 11 thereof;
The Nationals of each of the two countries who shall have obtained
recognition of the validity of their academic degrees by virtue of
the stipulations of this Treaty, can practice their professions within
the territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was
intended to govern Filipino citizens desiring to practice their
profession in Spain, and the citizens of Spain desiring to practice
their professions in the Philippines. Applicant is a Filipino citizen
desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled
to the privileges extended to Spanish nationals desiring to practice
in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or
diplomas to practice the liberal professions in either of the
Contracting States, issued by competent national authorities, shall
be deemed competent to exercise said professions in the territory
of the Other, subject to the laws and regulations of the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty
invoked by the applicant are made expressly subject to the laws
and regulations of the contracting State in whose territory it is
desired to exercise the legal profession; and Section 1 of Rule 127,
in connection with Sections 2,9, and 16 thereof, which have the
force of law, require that before anyone can practice the legal
profession in the Philippine he must first successfully pass the
required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic
of the Philippines and the Spanish State could not have been
intended to modify the laws and regulations governing admission
to the practice of law in the Philippines, for the reason that the
Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for
admission to the practice of law in the Philippines, the lower to
repeal, alter or supplement such rules being reserved only to the
Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Constitution).
THIRD DIVISION
G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs. COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge
RTC, Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City
Mayor of Caloocan and/or THE CITY GOVERNMENT OF
CALOOCAN, respondents.
ROMERO, J.:
The clash between the responsibility of the City Government of
Caloocan to dispose off the 350 tons of garbage it collects daily and
the growing concern and sensitivity to a pollution-free
environment of the residents of Barangay Camarin, Tala Estate,
Caloocan City where these tons of garbage are dumped everyday is
the hub of this controversy elevated by the protagonists to the
Laguna Lake Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this
Court by Laguna Lake Development Authority (LLDA for short)
docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the
Resolution of November 10, 1992, this Court referred G.R. No.
107542 to the Court of Appeals for appropriate disposition.
Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision1 promulgated on
January 29, 1993 ruled that the LLDA has no power and authority
to issue a cease and desist order enjoining the dumping of garbage
in Barangay Camarin, Tala Estate, Caloocan City. The LLDA now
seeks, in this petition, a review of the decision of the Court of
Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady
of Lourdes Parish, Barangay Camarin, Caloocan City, filed a letter-
complaint2 with the Laguna Lake Development Authority seeking to
stop the operation of the 8.6-hectare open garbage dumpsite in
Tala Estate, Barangay Camarin, Caloocan City due to its harmful
effects on the health of the residents and the possibility of
pollution of the water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site
investigation, monitoring and test sampling of the leachate3that
seeps from said dumpsite to the nearby creek which is a tributary
of the Marilao River. The LLDA Legal and Technical personnel found
that the City Government of Caloocan was maintaining an open
dumpsite at the Camarin area without first securing an
Environmental Compliance Certificate (ECC) from the
Environmental Management Bureau (EMB) of the Department of
Environment and Natural Resources, as required under Presidential
Decree No. 1586,4 and clearance from LLDA as required under
Republic Act No. 4850,5 as amended by Presidential Decree No.
813 and Executive Order No. 927, series of 1983.6
After a public hearing conducted on December 4, 1991, the LLDA,
acting on the complaint of Task Force Camarin Dumpsite, found
that the water collected from the leachate and the receiving
streams could considerably affect the quality, in turn, of the
receiving waters since it indicates the presence of bacteria, other
than coliform, which may have contaminated the sample during
collection or handling.7 On December 5, 1991, the LLDA issued a
Cease and Desist Order8 ordering the City Government of
Caloocan, Metropolitan Manila Authority, their contractors, and
other entities, to completely halt, stop and desist from dumping
any form or kind of garbage and other waste matter at the
Camarin dumpsite.
The dumping operation was forthwith stopped by the City
Government of Caloocan. However, sometime in August 1992 the
dumping operation was resumed after a meeting held in July 1992
among the City Government of Caloocan, the representatives of
Task Force Camarin Dumpsite and LLDA at the Office of
Environmental Management Bureau Director Rodrigo U. Fuentes
failed to settle the problem.
After an investigation by its team of legal and technical personnel
on August 14, 1992, the LLDA issued another order reiterating the
December 5, 1991, order and issued an Alias Cease and Desist
Order enjoining the City Government of Caloocan from continuing
its dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the
Philippine National Police, enforced its Alias Cease and Desist
Order by prohibiting the entry of all garbage dump trucks into the
Tala Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on
September 17, 1992 with the LLDA, the City Government of
Caloocan filed with the Regional Trial Court of Caloocan City an
action for the declaration of nullity of the cease and desist order
with prayer for the issuance of writ of injunction, docketed as Civil
Case No. C-15598. In its complaint, the City Government of
Caloocan sought to be declared as the sole authority empowered
to promote the health and safety and enhance the right of the
people in Caloocan City to a balanced ecology within its territorial
jurisdiction.9
On September 25, 1992, the Executive Judge of the Regional Trial
Court of Caloocan City issued a temporary restraining order
enjoining the LLDA from enforcing its cease and desist order.
Subsequently, the case was raffled to the Regional Trial Court,
Branch 126 of Caloocan which, at the time, was presided over by
Judge Manuel Jn. Serapio of the Regional Trial Court, Branch 127,
the pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss
on the ground, among others, that under Republic Act No. 3931, as
amended by Presidential Decree No. 984, otherwise known as the
Pollution Control Law, the cease and desist order issued by it which
is the subject matter of the complaint is reviewable both upon the
law and the facts of the case by the Court of Appeals and not by
the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order
consolidating Civil Case No. C-15598 with Civil Case No. C-15580,
an earlier case filed by the Task Force Camarin Dumpsite entitled
"Fr. John Moran, et al. vs. Hon. Macario Asistio." The LLDA,
however, maintained during the trial that the foregoing cases,
being independent of each other, should have been treated
separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the
motion to dismiss, issued in the consolidated cases an
order11 denying LLDA's motion to dismiss and granting the issuance
of a writ of preliminary injunction enjoining the LLDA, its agent and
all persons acting for and on its behalf, from enforcing or
implementing its cease and desist order which prevents plaintiff
City of Caloocan from dumping garbage at the Camarin dumpsite
during the pendency of this case and/or until further orders of the
court.
On November 5, 1992, the LLDA filed a petition for certiorari,
prohibition and injunction with prayer for restraining order with
the Supreme Court, docketed as G.R. No. 107542, seeking to nullify
the aforesaid order dated October 16, 1992 issued by the Regional
Trial Court, Branch 127 of Caloocan City denying its motion to
dismiss.
The Court, acting on the petition, issued a Resolution12 on
November 10, 1992 referring the case to the Court of Appeals for
proper disposition and at the same time, without giving due course
to the petition, required the respondents to comment on the
petition and file the same with the Court of Appeals within ten (10)
days from notice. In the meantime, the Court issued a temporary
restraining order, effective immediately and continuing until
further orders from it, ordering the respondents: (1) Judge Manuel
Jn. Serapio, Presiding Judge, Regional Trial Court, Branch 127,
Caloocan City to cease and desist from exercising jurisdiction over
the case for declaration of nullity of the cease and desist order
issued by the Laguna Lake Development Authority (LLDA); and (2)
City Mayor of Caloocan and/or the City Government of Caloocan to
cease and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A.
Asistio, Jr. filed on November 12, 1992 a motion for
reconsideration and/or to quash/recall the temporary restraining
order and an urgent motion for reconsideration alleging that ". . .
in view of the calamitous situation that would arise if the
respondent city government fails to collect 350 tons of garbage
daily for lack of dumpsite (i)t is therefore, imperative that the issue
be resolved with dispatch or with sufficient leeway to allow the
respondents to find alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution13 directing
the Court of Appeals to immediately set the case for hearing for
the purpose of determining whether or not the temporary
restraining order issued by the Court should be lifted and what
conditions, if any, may be required if it is to be so lifted or whether
the restraining order should be maintained or converted into a
preliminary injunction.
The Court of Appeals set the case for hearing on November 27,
1992, at 10:00 in the morning at the Hearing Room, 3rd Floor, New
Building, Court of Appeals.14 After the oral argument, a conference
was set on December 8, 1992 at 10:00 o'clock in the morning
where the Mayor of Caloocan City, the General Manager of LLDA,
the Secretary of DENR or his duly authorized representative and
the Secretary of DILG or his duly authorized representative were
required to appear.
It was agreed at the conference that the LLDA had until December
15, 1992 to finish its study and review of respondent's technical
plan with respect to the dumping of its garbage and in the event of
a rejection of respondent's technical plan or a failure of
settlement, the parties will submit within 10 days from notice their
respective memoranda on the merits of the case, after which the
petition shall be deemed submitted for
resolution.15Notwithstanding such efforts, the parties failed to
settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision
holding that: (1) the Regional Trial Court has no jurisdiction on
appeal to try, hear and decide the action for annulment of LLDA's
cease and desist order, including the issuance of a temporary
restraining order and preliminary injunction in relation thereto,
since appeal therefrom is within the exclusive and appellate
jurisdiction of the Court of Appeals under Section 9, par. (3), of
Batas Pambansa Blg. 129; and (2) the Laguna Lake Development
Authority has no power and authority to issue a cease and desist
order under its enabling law, Republic Act No. 4850, as amended
by P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the
preliminary injunction issued in the said case was set aside; the
cease and desist order of LLDA was likewise set aside and the
temporary restraining order enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City was lifted, subject, however, to the condition that
any future dumping of garbage in said area, shall be in conformity
with the procedure and protective works contained in the proposal
attached to the records of this case and found on pages 152-160 of
the Rollo, which was thereby adopted by reference and made an
integral part of the decision, until the corresponding restraining
and/or injunctive relief is granted by the proper Court upon LLDA's
institution of the necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed the instant
petition for review on certiorari, now docketed as G.R. No. 110120,
with prayer that the temporary restraining order lifted by the
Court of Appeals be re-issued until after final determination by this
Court of the issue on the proper interpretation of the powers and
authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining
order16 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its
garbage at the Tala Estate, Barangay Camarin, Caloocan City,
effective as of this date and containing until otherwise ordered by
the Court.
It is significant to note that while both parties in this case agree on
the need to protect the environment and to maintain the
ecological balance of the surrounding areas of the Camarin open
dumpsite, the question as to which agency can lawfully exercise
jurisdiction over the matter remains highly open to question.
The City Government of Caloocan claims that it is within its power,
as a local government unit, pursuant to the general welfare
provision of the Local Government Code, 17 to determine the
effects of the operation of the dumpsite on the ecological balance
and to see that such balance is maintained. On the basis of said
contention, it questioned, from the inception of the dispute before
the Regional Trial Court of Caloocan City, the power and authority
of the LLDA to issue a cease and desist order enjoining the
dumping of garbage in the Barangay Camarin over which the City
Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan
on the theory that Section 7 of Presidential Decree No. 984,
otherwise known as the Pollution Control law, authorizing the
defunct National Pollution Control Commission to issue an ex-
parte cease and desist order was not incorporated in Presidential
Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of
Republic Act No. 4850, as amended, the LLDA is instead required
"to institute the necessary legal proceeding against any person
who shall commence to implement or continue implementation of
any project, plan or program within the Laguna de Bay region
without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the
abovementioned ruling of the Court of Appeals, contending that,
as an administrative agency which was granted regulatory and
adjudicatory powers and functions by Republic Act No. 4850 and
its amendatory laws, Presidential Decree No. 813 and Executive
Order No. 927, series of 1983, it is invested with the power and
authority to issue a cease and desist order pursuant to Section 4
par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series of
1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have
the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules and
regulations only after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance of
pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of
pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal
system or parts thereof.
(f) After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever
the same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of
enforcing this Executive Order and its implementing rules and
regulations and the orders and decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed
and totally disregarded the above provisions of Executive Order
No. 927, series of 1983, which granted administrative quasi-judicial
functions to LLDA on pollution abatement cases.
In light of the relevant environmental protection laws cited which
are applicable in this case, and the corresponding overlapping
jurisdiction of government agencies implementing these laws, the
resolution of the issue of whether or not the LLDA has the
authority and power to issue an order which, in its nature and
effect was injunctive, necessarily requires a determination of the
threshold question: Does the Laguna Lake Development Authority,
under its Charter and its amendatory laws, have the authority to
entertain the complaint against the dumping of garbage in the
open dumpsite in Barangay Camarin authorized by the City
Government of Caloocan which is allegedly endangering the
health, safety, and welfare of the residents therein and the
sanitation and quality of the water in the area brought about by
exposure to pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the
environment that requires control, if not prohibition, of the
operation of a business establishment is essentially addressed to
the Environmental Management Bureau (EMB) of the DENR which,
by virtue of Section 16 of Executive Order No. 192, series of
1987,18 has assumed the powers and functions of the defunct
National Pollution Control Commission created under Republic Act
No. 3931. Under said Executive Order, a Pollution Adjudication
Board (PAB) under the Office of the DENR Secretary now assumes
the powers and functions of the National Pollution Control
Commission with respect to adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally
pertains to the Pollution Adjudication Board (PAB), except in cases
where the special law provides for another forum. It must be
recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under Republic Act
No. 4850 and its amendatory laws to carry out and make effective
the declared national policy20 of promoting and accelerating the
development and balanced growth of the Laguna Lake area and
the surrounding provinces of Rizal and Laguna and the cities of San
Pablo, Manila, Pasay, Quezon and Caloocan21 with due regard and
adequate provisions for environmental management and control,
preservation of the quality of human life and ecological systems,
and the prevention of undue ecological disturbances, deterioration
and pollution. Under such a broad grant and power and authority,
the LLDA, by virtue of its special charter, obviously has the
responsibility to protect the inhabitants of the Laguna Lake region
from the deleterious effects of pollutants emanating from the
discharge of wastes from the surrounding areas. In carrying out the
aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans,
programs, and projects proposed by local government
offices/agencies within the region, public corporations, and private
persons or enterprises where such plans, programs and/or projects
are related to those of the LLDA for the development of the
region. 22
In the instant case, when the complainant Task Force Camarin
Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin,
Caloocan City, filed its letter-complaint before the LLDA, the
latter's jurisdiction under its charter was validly invoked by
complainant on the basis of its allegation that the open dumpsite
project of the City Government of Caloocan in Barangay Camarin
was undertaken without a clearance from the LLDA, as required
under Section 4, par. (d), of Republic Act. No. 4850, as amended by
P.D. No. 813 and Executive Order No. 927. While there is also an
allegation that the said project was without an Environmental
Compliance Certificate from the Environmental Management
Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA
over this case was recognized by the Environmental Management
Bureau of the DENR when the latter acted as intermediary at the
meeting among the representatives of the City Government of
Caloocan, Task Force Camarin Dumpsite and LLDA sometime in July
1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then
narrows down to the following issue: Does the LLDA have the
power and authority to issue a "cease and desist" order under
Republic Act No. 4850 and its amendatory laws, on the basis of the
facts presented in this case, enjoining the dumping of garbage in
Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City
Government of Caloocan to stop dumping its garbage in the
Camarin open dumpsite found by the LLDA to have been done in
violation of Republic Act No. 4850, as amended, and other relevant
environment laws,23 cannot be stamped as an unauthorized
exercise by the LLDA of injunctive powers. By its express terms,
Republic Act No. 4850, as amended by P.D. No. 813 and Executive
Order No. 927, series of 1983, authorizes the LLDA to "make, alter
or modify order requiring the discontinuance or
pollution."24 (Emphasis supplied) Section 4, par. (d) explicitly
authorizes the LLDA to make whatever order may be necessary in
the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to
issue and ex-parte cease and desist order" in a language, as
suggested by the City Government of Caloocan, similar to the
express grant to the defunct National Pollution Control
Commission under Section 7 of P.D. No. 984 which, admittedly was
not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983.
However, it would be a mistake to draw therefrom the conclusion
that there is a denial of the power to issue the order in question
when the power "to make, alter or modify orders requiring the
discontinuance of pollution" is expressly and clearly bestowed
upon the LLDA by Executive Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and desist
order" were not expressly conferred by law, there is jurisprudence
enough to the effect that the rule granting such authority need not
necessarily be express.25 While it is a fundamental rule that an
administrative agency has only such powers as are expressly
granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are necessarily
implied in the exercise of its express powers.26 In the exercise,
therefore, of its express powers under its charter as a regulatory
and quasi-judicial body with respect to pollution cases in the
Laguna Lake region, the authority of the LLDA to issue a "cease and
desist order" is, perforce, implied. Otherwise, it may well be
reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication
Board v. Court of Appeals, et al.,27 the Court ruled that the
Pollution Adjudication Board (PAB) has the power to issue an ex-
parte cease and desist order when there isprima facie evidence of
an establishment exceeding the allowable standards set by the
anti-pollution laws of the country. The ponente, Associate Justice
Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely because
stopping the continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters of the Philippines
cannot be made to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which
Solar has taken, which of course may take several years. The
relevant pollution control statute and implementing regulations
were enacted and promulgated in the exercise of that pervasive,
sovereign power to protect the safety, health, and general welfare
and comfort of the public, as well as the protection of plant and
animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of
procedural due process yield to the necessities of protecting vital
public interests like those here involved, through the exercise of
police power. . . .”
The immediate response to the demands of "the necessities of
protecting vital public interests" gives vitality to the statement on
ecology embodied in the Declaration of Principles and State
Policies or the 1987 Constitution. Article II, Section 16 which
provides:
The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.”
As a constitutionally guaranteed right of every person, it carries the
correlative duty of non-impairment. This is but in consonance with
the declared policy of the state "to protect and promote the right
to health of the people and instill health consciousness among
them."28 It is to be borne in mind that the Philippines is party to
the Universal Declaration of Human Rights and the Alma
Conference Declaration of 1978 which recognize health as a
fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA,
as a practical matter of procedure under the circumstances of the
case, is a proper exercise of its power and authority under its
charter and its amendatory laws. Had the cease and desist order
issued by the LLDA been complied with by the City Government of
Caloocan as it did in the first instance, no further legal steps would
have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead
of conferring upon the LLDA the means of directly enforcing such
orders, has provided under its Section 4 (d) the power to institute
"necessary legal proceeding against any person who shall
commence to implement or continue implementation of any
project, plan or program within the Laguna de Bay region without
previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with
sufficiently broad powers in the regulation of all projects initiated
in the Laguna Lake region, whether by the government or the
private sector, insofar as the implementation of these projects is
concerned. It was meant to deal with cases which might possibly
arise where decisions or orders issued pursuant to the exercise of
such broad powers may not be obeyed, resulting in the thwarting
of its laudabe objective. To meet such contingencies, then the
writs of mandamus and injunction which are beyond the power of
the LLDA to issue, may be sought from the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the
Laguna Lake region and its surrounding provinces, cities and towns
are concerned, the Court will not dwell further on the related
issues raised which are more appropriately addressed to an
administrative agency with the special knowledge and expertise of
the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining
order issued by the Court on July 19, 1993 enjoining the City Mayor
of Caloocan and/or the City Government of Caloocan from
dumping their garbage at the Tala Estate, Barangay Camarin,
Caloocan City is hereby made permanent.