Consti Law Cases

CONSTITUTIONAL LAW 1 | Principlesand State Policies

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporationsand partnerships adversely affected. by Republic Act No. 1180, petitioner, vs.JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance.City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.Dionisio Reyes as Amicus Curiae.Marcial G. Mendiola as Amicus Curiae.Emiliano R. Navarro as Amicus Curiae.

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 theconditions 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 effectit 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 ownedby 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 theapproval 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


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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 actingunder 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 andproperty 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 againstthe 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 asthe fields of public interest and public welfare have become almost all-embracing and


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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 classprivilege, 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 itbe 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


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on public interest and welfare, and a reasonable relation must exist between purposesand 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 isthe constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judgeof 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 legitimatepolicy, 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 theissue 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 immemorialhas 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 ofliving, in which man's needs have multiplied and diversified to unlimited extents andproportions, 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 theneedle 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 operatorof 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


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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 heheeds 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 fulland 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. Theothers 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 SalesYear andRetailers

Nationality

No.-Establishme

ntsPesos

Per centDistribu

tionPesos

Per centDistribution

1941:

Filipino ..........

106,671 200,323,138

55.82 174,181,924

51.74

Chinese ...........

15,356 118,348,692

32.98 148,813,239

44.21


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Others............

1,646 40,187,090

11.20 13,630,239

4.05

1947:

Filipino ..........

111,107 208,658,946

65.05 279,583,333

57.03

Chinese ...........

13,774 106,156,218

33.56 205,701,134

41.96

Others...........

354 8,761,260 .49 4,927,168 1.01

1948:

(Census)Filipino ..........

113,631 213,342,264

67.30 467,161,667

60.51

Chinese ..........

12,087 93,155,459

29.38 294,894,227

38.20

Others..........

422 10,514,675

3.32 9,995,402 1.29

1949:

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

Others..........

486 12,056,365

3.39 10,078,364

1.17

1951:

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

Others..........

347 8,614,025 2.31 7,645,327 87


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AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT

Year and Retailer's Nationality

ItemAssets(Pesos)

GrossSales(Pesos)

1941:

Filipino .............................................

1,878 1,633

Chinese ..............................................

7,707 9,691

Others ...............................................

24,415 8,281

1947:

Filipino .............................................

1,878 2,516

Chinese ...........................................

7,707 14,934

Others ..............................................

24,749 13,919

1948: (Census)

Filipino .............................................

1,878 4,111

Chinese .............................................

7,707 24,398

Others ..............................................

24,916 23,686

1949:

Filipino .............................................

1,878 4,069

Chinese ..............................................

7,707 24,152

Others ..............................................

24,807 20,737

1951:

Filipino .............................................

1,877 3,905

Chinese .............................................

7,707 33,207

Others ...............................................

24,824 22,033


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(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)

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 upfor the numerical gap through their assests and gross sales which average between sixand 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 toseven 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 Filipinoretailers 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 havenot been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of the Preamble opinesthat 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 ofthe members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic lifeof 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 controlof the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the governmentas 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 Nationalconvention of Filipino Businessmen, and a similar resolution, approved on March 20,


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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 tolie 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 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 theirmercy. 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 thereexists 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 mentionof 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 practicesand 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, RepublicAct 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 outof 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 engagedin 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.


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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 commoditiesin 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 thathas 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 outabove, the mere fact of alienage is the root and cause of the distinction between thealien and the national as a trader. The alien resident owes allegiance to the countryof his birth or his adopted country; his stay here is for personal convenience; he isattracted 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 exploitingthem. 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 thealien 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 makesa 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 happinessof 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 inthe 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


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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 isactual, 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 iswithout 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 theclassification 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 asin 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 encouragementof 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:


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"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 anextensive 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, inthe 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 themselvesinto 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 ofprotection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference in status betweencitizens 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 licensingof 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 heldvalid, 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 purposeto 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


13

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 fishin 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 beentreated 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 theact 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 countryare without the intimate knowledge of our laws, customs, and usages that our ownpeople 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,


14

have not the same inspiration for the public weal, nor are they as well disposedtoward 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. . . . .

x x x x x x 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 x x x x x x

. . . . 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. . . .


15

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 ofthe 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 soengaged 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 petitioner, which overlooks and ignores the facts and 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 haveheretofore 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 notnecessarily 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 reasonablebut 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 uponour 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.


16

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 legislationthat 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 alaw which limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quotedon 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. Itwould 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 dangerand 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


17

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 argumentsraised 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 willincrease 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 ofthe 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 consequencesof 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 act prohibiting 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


18

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 withinthe 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. Thelegislators 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 Chinaof April 18, 1947 is also claimed to be violated by the law in question. All that thetreaty 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 prohibitedfrom engaging in the retail trade. But even supposing that the law infringes upon thesaid 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


19

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 theState, 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 theConstitution 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 enteredinto 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.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and duly approved by the President of theRepublic. But the rule does not preclude courts from inquiring and determining whether the Act offends against a provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of whichis not wholly owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have heretofore been engaged in said business. When they did engage in the retail businessthere was no prohibition on or against them to engage in it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their death or voluntary retirement from the business or forfeiture of their license; and corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the


20

Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten yearsfrom the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the approval ofthe Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their property without due process of law.To my mind, the ten-year period from the date of the approval of the Act or until theexpiration of the term of the existence of the association and partnership, whicheverevent comes first, and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell ordispose of their business. The price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the association, partnership and the alien had built up during a long period of effort, patience and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of his property without due process of law2 and that no person shall be denied the equal protection of the laws3 would have no meaning as applied to associations or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership as agreed upon by the associations and partners and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to therein to wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws clauses of the Constitution.

Footnotes

1 Section 76, Act No. 1459..


21

2 Section 1 (1), Article III, of the Constitution..

3 Ibid.

4 Section 5, Article XIII, of the Constitution.

EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, andGEN. ANGELO REYES, respondents.

D E C I S I O NKAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayerfor issuance of a temporary restraining order seeking to nullify onconstitutional grounds the order of President Joseph Ejercito Estradacommanding the deployment of the Philippine Marines (the “Marines”) to join


22

the Philippine National Police (the “PNP”) in visibility patrols around themetropolis.

In view of the alarming increase in violent crimes in Metro Manila, likerobberies, kidnappings and carnappings, the President, in a verbaldirective, ordered the PNP and the Marines to conduct joint visibilitypatrols for the purpose of crime prevention and suppression. The Secretaryof National Defense, the Chief of Staff of the Armed Forces of thePhilippines (the “AFP”), the Chief of the PNP and the Secretary of theInterior and Local Government were tasked to execute and implement the saidorder. In compliance with the presidential mandate, the PNP Chief, throughPolice Chief Superintendent Edgar B. Aglipay, formulated Letter ofInstruction 02/2000[1] (the “LOI”) which detailed the manner by which thejoint visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief ofMetro Manila.

Subsequently, the President confirmed his previous directive on thedeployment of the Marines in a Memorandum, dated 24 January 2000,addressed to the Chief of Staff of the AFP and the PNP Chief.[3] In theMemorandum, the President expressed his desire to improve the peace andorder situation in Metro Manila through a more effective crime preventionprogram including increased police patrols.[4] The President further statedthat to heighten police visibility in the metropolis, augmentation from theAFP is necessary.[5]Invoking his powers as Commander-in-Chief under Section18, Article VII of the Constitution, the President directed the AFP Chiefof Staff and PNP Chief to coordinate with each other for the properdeployment and utilization of the Marines to assist the PNP in preventingor suppressing criminal or lawless violence.[6] Finally, the Presidentdeclared that the services of the Marines in the anti-crime campaign aremerely temporary in nature and for a reasonable period only, until suchtime when the situation shall have improved.[7]

The LOI explains the concept of the PNP-Philippine Marines jointvisibility patrols as follows:

x x x

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the PhilippineMarines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will


23

reduce the incidence of crimes specially those perpetrated by active or former police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital RegionalPolice Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force “TULUNGAN” shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation.

xxx.[8]

The selected areas of deployment under the LOI are: Monumento Circle,North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall,Makati Commercial Center, LRT/MRT Stations and the NAIA and DomesticAirport.[9]

On 17 January 2000, the Integrated Bar of the Philippines (the “IBP”)filed the instant petition to annul LOI 02/2000 and to declare thedeployment of the Philippine Marines, null and void and unconstitutional,arguing that:

I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:


24

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) INDEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10]

Asserting itself as the official organization of Filipino lawyers taskedwith the bounden duty to uphold the rule of law and the Constitution, theIBP questions the validity of the deployment and utilization of the Marinesto assist the PNP in law enforcement.

Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required the Solicitor General to file hisComment on the petition. On 8 February 2000, the Solicitor Generalsubmitted his Comment.

The Solicitor General vigorously defends the constitutionality of theact of the President in deploying the Marines, contending, among others,that petitioner has no legal standing; that the question of deployment ofthe Marines is not proper for judicial scrutiny since the same involves apolitical question; that the organization and conduct of police visibilitypatrols, which feature the team-up of one police officer and one PhilippineMarine soldier, does not violate the civilian supremacy clause in theConstitution.

The issues raised in the present petition are: (1) Whether or notpetitioner has legal standing; (2) Whether or not the President’s factualdetermination of the necessity of calling the armed forces is subject tojudicial review; and, (3) Whether or not the calling of the armed forces toassist the PNP in joint visibility patrols violates theconstitutional provisions on civilian supremacy over the military and thecivilian character of the PNP.

The petition has no merit.First, petitioner failed to sufficiently show that it is in possession

of the requisites of standing to raise the issues in the petition. Second,the President did not commit grave abuse of discretion amounting to lack orexcess of jurisdiction nor did he commit a violation of the civiliansupremacy clause of the Constitution.


25

The power of judicial review is set forth in Section 1, Article VIII ofthe Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Courtand in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court canexercise its power of judicial review only if the following requisites arecomplied with, namely: (1) the existence of an actual and appropriatecase; (2) a personal and substantial interest of the party raising theconstitutional question; (3) the exercise of judicial review is pleaded atthe earliest opportunity; and (4) the constitutional question is the lismota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

“Legal standing” or locus standi has been defined as a personal andsubstantial interest in the case such that the party has sustained or willsustain direct injury as a result of the governmental act that is beingchallenged.[13] The term “interest” means a material interest, an interest inissue affected by the decree, as distinguished from mere interest in thequestion involved, or a mere incidental interest.[14] The gist of thequestion of standing is whether a party alleges “such personal stake in theoutcome of the controversy as to assure that concrete adverseness whichsharpens the presentation of issues upon which the court depends forillumination of difficult constitutional questions.”[15]

In the case at bar, the IBP primarily anchors its standing on itsalleged responsibility to uphold the rule of law and theConstitution. Apart from this declaration, however, the IBP asserts noother basis in support of its locus standi. The mere invocation by the IBP ofits duty to preserve the rule of law and nothing more, while undoubtedlytrue, is not sufficient to clothe it with standing in this case. This istoo general an interest which is shared by other groups and the wholecitizenry. Based on the standards above-stated, the IBP has failed topresent a specific and substantial interest in the resolution of thecase. Its fundamental purpose which, under Section 2, Rule 139-A of theRules of Court, is to elevate the standards of the law profession and toimprove the administration of justice is alien to, and cannot be affectedby the deployment of the Marines. It should also be noted that theinterest of the National President of the IBP who signed the petition, ishis alone, absent a formal board resolution authorizing him to file thepresent action. To be sure, members of the BAR, those in the judiciary


26

included, have varying opinions on the issue. Moreover, the IBP, assumingthat it has duly authorized the National President to file the petition,has not shown any specific injury which it has suffered or may suffer byvirtue of the questioned governmental act. Indeed, none of its members,whom the IBP purportedly represents, has sustained any form of injury as aresult of the operation of the joint visibility patrols. Neither is italleged that any of its members has been arrested or that their civilliberties have been violated by the deployment of the Marines. What theIBP projects as injurious is the supposed “militarization” of lawenforcement which might threaten Philippine democratic institutions and maycause more harm than good in the long run. Not only is the presumed“injury” not personal in character, it is likewise too vague, highlyspeculative and uncertain to satisfy the requirement of standing. Sincepetitioner has not successfully established a direct and personal injury asa consequence of the questioned act, it does not possess the personality toassail the validity of the deployment of the Marines. This Court, however,does not categorically rule that the IBP has absolutely no standing toraise constitutional issues now or in the future. The IBP must, by way ofallegations and proof, satisfy this Court that it has sufficient stake toobtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court hasthe discretion to take cognizance of a suit which does not satisfy therequirement of legal standing when paramount interest is involved.[16] In nota few cases, the Court has adopted a liberal attitude on the locus standi of apetitioner where the petitioner is able to craft an issue of transcendentalsignificance to the people.[17] Thus, when the issues raised are of paramountimportance to the public, the Court may brush aside technicalities ofprocedure.[18] In this case, a reading of the petition shows that the IBP hasadvanced constitutional issues which deserve the attention of this Court inview of their seriousness, novelty and weight as precedents. Moreover,because peace and order are under constant threat and lawless violenceoccurs in increasing tempo, undoubtedly aggravated by the Mindanaoinsurgency problem, the legal controversy raised in the petition almostcertainly will not go away. It will stare us in the face again. It,therefore, behooves the Court to relax the rules on standing and to resolvethe issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factualdetermination of the President of the necessity of calling the armedforces, particularly the Marines, to aid the PNP in visibility patrols. Inthis regard, the IBP admits that the deployment of the military personnelfalls under the Commander-in-Chief powers of the President as stated inSection 18, Article VII of the Constitution, specifically, the power tocall out the armed forces to prevent or suppress lawless violence, invasionor rebellion. What the IBP questions, however, is the basis for thecalling of the Marines under the aforestated provision. According to theIBP, no emergency exists that would justify the need for the calling of the


27

military to assist the police force. It contends that no lawless violence,invasion or rebellion exist to warrant the calling of the Marines. Thus,the IBP prays that this Court “review the sufficiency of the factual basisfor said troop [Marine] deployment.”[19]

The Solicitor General, on the other hand, contends that the issuepertaining to the necessity of calling the armed forces is not proper forjudicial scrutiny since it involves a political question and the resolutionof factual issues which are beyond the review powers of this Court.

As framed by the parties, the underlying issues are the scope ofpresidential powers and limits, and the extent of judicial review. But,while this Court gives considerable weight to the parties’ formulation ofthe issues, the resolution of the controversy may warrant a creativeapproach that goes beyond the narrow confines of the issues raised. Thus,while the parties are in agreement that the power exercised by thePresident is the power to call out the armed forces, the Court is of theview that the power involved may be no more than the maintenance of peaceand order and promotion of the general welfare.[20] For one, the realities onthe ground do not show that there exist a state of warfare, widespreadcivil unrest or anarchy. Secondly, the full brunt of the military is notbrought upon the citizenry, a point discussed in the latter part of thisdecision. In the words of the late Justice Irene Cortes inMarcos v.Manglapus:

More particularly, this case calls for the exercise of the President’s powers as protector of the peace. [Rossiter, The American Presidency]. The power of the President to keep the peace isnot limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

xxx[21]

Nonetheless, even if it is conceded that the power involved is thePresident’s power to call out the armed forces to prevent or suppress


28

lawless violence, invasion or rebellion, the resolution of the controversywill reach a similar result.

We now address the Solicitor General’s argument that the issue involvedis not susceptible to review by the judiciary because it involves apolitical question, and thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to amatter which is appropriate for court review.[22] It pertains to issues whichare inherently susceptible of being decided on grounds recognized by law.Nevertheless, the Court does not automatically assume jurisdiction overactual constitutional cases brought before it even in instances that areripe for resolution. One class of cases wherein the Court hesitates torule on are “political questions.” The reason is that political questionsare concerned with issues dependent upon the wisdom, not the legality, of aparticular act or measure being assailed. Moreover, the political questionbeing a function of the separation of powers, the courts will not normallyinterfere with the workings of another co-equal branch unless the caseshows a clear need for the courts to step in to uphold the law and theConstitution.

As Tañada v. Cuenco[23] puts it, political questions refer “to thosequestions which, under the Constitution, are to be decided by the people intheir sovereign capacity, or in regard to which full discretionaryauthority has been delegated to the legislative or executive branch ofgovernment.” Thus, if an issue is clearly identified by the text of theConstitution as matters for discretionary action by a particular branch ofgovernment or to the people themselves then it is held to be a politicalquestion. In the classic formulation of Justice Brennan in Baker v. Carr,[24] “[p]rominent on the surface of any case held to involve a politicalquestion is found a textually demonstrable constitutional commitment of theissue to a coordinate political department; or a lack of judiciallydiscoverable and manageable standards for resolving it; or theimpossibility of deciding without an initial policy determination of a kindclearly for nonjudicial discretion; or the impossibility of a court’sundertaking independent resolution without expressing lack of the respectdue coordinate branches of government; or an unusual need for unquestioningadherence to a political decision already made; or the potentiality ofembarassment from multifarious pronouncements by various departments on theone question.”

The 1987 Constitution expands the concept of judicial review byproviding that “(T)he Judicial power shall be vested in one Supreme Courtand in such lower courts as may be established by law. Judicial powerincludes the duty of the courts of justice to settle actual controversiesinvolving rights which are legally demandable and enforceable, and todetermine whether or not there has been a grave abuse of discretionamounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of the Government.”[25]Under this definition, the Courtcannot agree with the Solicitor General that the issue involved is apolitical question beyond the jurisdiction of this Court to review. Whenthe grant of power is qualified, conditional or subject to limitations, theissue of whether the prescribed qualifications or conditions have been met


29

or the limitations respected, is justiciable - the problem being one oflegality or validity, not its wisdom.[26] Moreover, the jurisdiction todelimit constitutional boundaries has been given to this Court.[27] Whenpolitical questions are involved, the Constitution limits the determinationas to whether or not there has been a grave abuse of discretion amountingto lack or excess of jurisdiction on the part of the official whose actionis being questioned.[28]

By grave abuse of discretion is meant simply capricious or whimsicalexercise of judgment that is patent and gross as to amount to an evasionof positive duty or a virtual refusal to perform a duty enjoined by law, orto act at all in contemplation of law, as where the power is exercised inan arbitrary and despotic manner by reason of passion or hostility.[29]Underthis definition, a court is without power to directly decide matters overwhich full discretionary authority has been delegated. But while thisCourt has no power to substitute its judgment for that of Congress or ofthe President, it may look into the question of whether such exercise hasbeen made in grave abuse of discretion.[30] A showing that plenary power isgranted either department of government, may not be an obstacle to judicialinquiry, for the improvident exercise or abuse thereof may give rise tojusticiable controversy.[31]

When the President calls the armed forces to prevent or suppress lawlessviolence, invasion or rebellion, he necessarily exercises a discretionarypower solely vested in his wisdom. This is clear from the intent of theframers and from the text of the Constitution itself. The Court, thus,cannot be called upon to overrule the President’s wisdom or substitute itsown. However, this does not prevent an examination of whether such powerwas exercised within permissible constitutional limits or whether it wasexercised in a manner constituting grave abuse of discretion. In view ofthe constitutional intent to give the President full discretionary power todetermine the necessity of calling out the armed forces, it is incumbentupon the petitioner to show that the President’s decision is totally bereftof factual basis. The present petition fails to discharge such heavyburden as there is no evidence to support the assertion that there exist nojustification for calling out the armed forces. There is, likewise, noevidence to support the proposition that grave abuse was committed becausethe power to call was exercised in such a manner as to violate theconstitutional provision on civilian supremacy over the military. In theperformance of this Court’s duty of “purposeful hesitation”[32] beforedeclaring an act of another branch as unconstitutional, only where suchgrave abuse of discretion is clearly shown shall the Court interfere withthe President’s judgment. To doubt is to sustain.

There is a clear textual commitment under the Constitution to bestow onthe President full discretionary power to call out the armed forces and todetermine the necessity for the exercise of such power. Section 18,Article VII of the Constitution, which embodies the powers of the Presidentas Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call


30

out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when thepublic safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

x x xThe full discretionary power of the President to determine the factual

basis for the exercise of the calling out power is also implied and furtherreinforced in the rest of Section 18, Article VII which reads, thus:

x x x

Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall notbe set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.


31

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within threedays, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation orsuspension and the Court may review the sufficiency of the factual basisthereof. However, there is no such equivalent provision dealing with therevocation or review of the President’s action to call out the armedforces. The distinction places the calling out power in a differentcategory from the power to declare martial law and the power to suspend theprivilege of the writ of habeas corpus, otherwise, the framers of theConstitution would have simply lumped together the three powers andprovided for their revocation and review without anyqualification. Expressio unius est exclusio alterius. Where the terms are expresslylimited to certain matters, it may not, by interpretation or construction,be extended to other matters.[33] That the intent of the Constitution isexactly what its letter says, i.e., that the power to call is fullydiscretionary to the President, is extant in the deliberation of theConstitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that thereis a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.

x x x

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: “The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.” So we feel that that is sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there isimminent danger, the matter can be handled by the First Sentence: “The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion.” So we feel thatthat is sufficient for handling imminent danger, of invasion or


32

rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34]

The reason for the difference in the treatment of the aforementionedpowers highlights the intent to grant the President the widest leeway andbroadest discretion in using the power to call out because it is consideredas the lesser and more benign power compared to the power to suspend theprivilege of the writ of habeas corpus and the power to impose martial law,both of which involve the curtailment and suppression of certain basiccivil rights and individual freedoms, and thus necessitating safeguards byCongress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in theexercise of the power to suspend the privilege of the writ of habeascorpus or to impose martial law, two conditions must concur: (1) there mustbe an actual invasion or rebellion and, (2) public safety must require it.These conditions are not required in the case of the power to call out thearmed forces. The only criterion is that “whenever it becomes necessary,”the President may call the armed forces “to prevent or suppress lawlessviolence, invasion or rebellion." The implication is that the President isgiven full discretion and wide latitude in the exercise of the power tocall as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion thatthe President acted without factual basis, then this Court cannot undertakean independent investigation beyond the pleadings. The factual necessityof calling out the armed forces is not easily quantifiable and cannot beobjectively established since matters considered for satisfying the same isa combination of several factors which are not always accessible to thecourts. Besides the absence of textual standards that the court may use tojudge necessity, information necessary to arrive at such judgment mightalso prove unmanageable for the courts. Certain pertinent informationmight be difficult to verify, or wholly unavailable to the courts. In manyinstances, the evidence upon which the President might decide that there isa need to call out the armed forces may be of a nature not constitutingtechnical proof.

On the other hand, the President as Commander-in-Chief has a vastintelligence network to gather information, some of which may be classifiedas highly confidential or affecting the security of the state. In theexercise of the power to call, on-the-spot decisions may be imperativelynecessary in emergency situations to avert great loss of human lives andmass destruction of property. Indeed, the decision to call out themilitary to prevent or suppress lawless violence must be done swiftly anddecisively if it were to have any effect at all. Such a scenario is notfarfetched when we consider the present situation in Mindanao, where theinsurgency problem could spill over the other parts of the country. Thedetermination of the necessity for the calling out power if subjected to


33

unfettered judicial scrutiny could be a veritable prescription fordisaster, as such power may be unduly straitjacketed by an injunction or atemporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon thePresident, as Commander-in-Chief of the Armed Forces, full discretion tocall forth the military when in his judgment it is necessary to do so inorder to prevent or suppress lawless violence, invasion orrebellion. Unless the petitioner can show that the exercise of suchdiscretion was gravely abused, the President’s exercise of judgmentdeserves to be accorded respect from this Court.

The President has already determined the necessity and factual basis forcalling the armed forces. In his Memorandum, he categorically assertedthat, “[V]iolent crimes like bank/store robberies, holdups, kidnappings andcarnappings continue to occur in Metro Manila...”[35] We do not doubt theveracity of the President’s assessment of the situation, especially in thelight of present developments. The Court takes judicial notice of therecent bombings perpetrated by lawless elements in the shopping malls,public utilities, and other public places. These are among the areas ofdeployment described in the LOI 2000. Considering all these facts, we holdthat the President has sufficient factual basis to call for military aid inlaw enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does itinfringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists tojustify the calling of the Marines, the IBP asserts that by the deploymentof the Marines, the civilian task of law enforcement is “militarized” inviolation of Section 3, Article II[36] of the Constitution.

We disagree. The deployment of the Marines does not constitute a breachof the civilian supremacy clause. The calling of the Marines in this caseconstitutes permissible use of military assets for civilian lawenforcement. The participation of the Marines in the conduct of jointvisibility patrols is appropriately circumscribed. The limitedparticipation of the Marines is evident in the provisions of the LOIitself, which sufficiently provides the metes and bounds of the Marines’authority. It is noteworthy that the local police forces are the ones incharge of the visibility patrols at all times, the real authority belongingto the PNP. In fact, the Metro Manila Police Chief is the overall leaderof the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI,the police forces are tasked to brief or orient the soldiers on policepatrol procedures.[38] It is their responsibility to direct and manage thedeployment of the Marines.[39] It is, likewise, their duty to provide thenecessary equipment to the Marines and render logistical support to thesesoldiers.[40] In view of the foregoing, it cannot be properly argued thatmilitary authority is supreme over civilian authority. Moreover, thedeployment of the Marines to assist the PNP does not unmake the civiliancharacter of the police force. Neither does it amount to an “insidious


34

incursion” of the military in the task of law enforcement in violation ofSection 5(4), Article XVI of the Constitution.[41]

In this regard, it is not correct to say that General Angelo Reyes,Chief of Staff of the AFP, by his alleged involvement in civilian lawenforcement, has been virtually appointed to a civilian post in derogationof the aforecited provision. The real authority in these operations, asstated in the LOI, is lodged with the head of a civilian institution, thePNP, and not with the military. Such being the case, it does not matterwhether the AFP Chief actually participates in the Task Force Tulungan sincehe does not exercise any authority or control over the same. Since none ofthe Marines was incorporated or enlisted as members of the PNP, there canbe no appointment to civilian position to speak of. Hence, the deploymentof the Marines in the joint visibility patrols does not destroy thecivilian character of the PNP.

Considering the above circumstances, the Marines render nothing morethan assistance required in conducting the patrols. As such, there can beno “insidious incursion” of the military in civilian affairs nor can therebe a violation of the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authoritiesin various forms persists in Philippine jurisdiction. The Philippineexperience reveals that it is not averse to requesting the assistance ofthe military in the implementation and execution of certain traditionally“civil” functions. As correctly pointed out by the Solicitor General, someof the multifarious activities wherein military aid has been rendered,exemplifying the activities that bring both the civilian and the militarytogether in a relationship of cooperation, are:

1. Elections;[42]

2. Administration of the Philippine National Red Cross;[43]

3. Relief and rescue operations during calamities and disasters;[44]

4. Amateur sports promotion and development;[45]

5. Development of the culture and the arts;[46]

6. Conservation of natural resources;[47]

7. Implementation of the agrarian reform program;[48]

8. Enforcement of customs laws;[49]

9. Composite civilian-military law enforcement activities;[50]

10. Conduct of licensure examinations;[51]

11. Conduct of nationwide tests for elementary and high school students;[52]

12. Anti-drug enforcement activities;[53]

13. Sanitary inspections;[54]

14. Conduct of census work;[55]

15. Administration of the Civil Aeronautics Board;[56]

16. Assistance in installation of weather forecasting devices;[57]

17. Peace and order policy formulation in local government units.[58]


35

This unquestionably constitutes a gloss on executive power resultingfrom a systematic, unbroken, executive practice, long pursued to theknowledge of Congress and, yet, never before questioned.[59] What we havehere is mutual support and cooperation between the military and civilianauthorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostilitytowards the use of military force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for thepower to call, the use of military personnel by civilian law enforcementofficers is allowed under circumstances similar to those surrounding thepresent deployment of the Philippine Marines. Under the PosseComitatus Act[61] of the US, the use of the military in civilian lawenforcement is generally prohibited, except in certain allowablecircumstances. A provision of the Act states:

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwiseto execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62]

To determine whether there is a violation of the Posse Comitatus Act inthe use of military personnel, the US courts[63] apply thefollowing standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory [64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

x x x

When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied)

Even if the Court were to apply the above rigid standards to the presentcase to determine whether there is permissible use of the military incivilian law enforcement, the conclusion is inevitable that no violation of


36

the civilian supremacy clause in the Constitution is committed. On thispoint, the Court agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A,are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of ahandful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement.[71]

It appears that the present petition is anchored on fear that once thearmed forces are deployed, the military will gain ascendancy, and thusplace in peril our cherished liberties. Such apprehensions, however, areunfounded. The power to call the armed forces is just that - calling outthe armed forces. Unless, petitioner IBP can show, which it has not, thatin the deployment of the Marines, the President has violated thefundamental law, exceeded his authority or jeopardized the civil libertiesof the people, this Court is not inclined to overrule the President’sdetermination of the factual basis for the calling of the Marines toprevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol inJanuary, 2000, not a single citizen has complained that his political orcivil rights have been violated as a result of the deployment of theMarines. It was precisely to safeguard peace, tranquility and the civilliberties of the people that the joint visibility patrol wasconceived. Freedom and democracy will be in full bloom only when peoplefeel secure in their homes and in the streets, not when the shadows ofviolence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.SO ORDERED.Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,

Jr., JJ., concur.Bellosillo, J., on official leave.Puno, J., see separate opinion.Vitug, J., see separate opinion.Mendoza, J., see concurring and dissenting opinion.Panganiban, J., in the result.Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.:

If the case at bar is significant, it is because of the governmentattempt to foist the political question doctrine to shield an executive act


37

done in the exercise of the commander-in-chief powers from judicialscrutiny. If the attempt succeeded, it would have diminished the power ofjudicial review and weakened the checking authority of this Court over theChief Executive when he exercises his commander-in-chief powers. Theattempt should remind us of the tragedy that befell the country when thisCourt sought refuge in the political question doctrine and forfeited itsmost important role as protector of the civil and political rights of ourpeople. The ongoing conflict in Mindanao may worsen and can force theChief Executive to resort to the use of his greater commander-in-chiefpowers, hence, this Court should be extra cautious in assaying similarattempts. A laid back posture may not sit well with our people consideringthat the 1987 Constitution strengthened the checking powers of this Courtand expanded its jurisdiction precisely to stop any act constituting “xxxgrave abuse of jurisdiction xxx on the part of any branch orinstrumentality of the Government.”1

The importance of the issue at bar includes this humble separateopinion. We can best perceive the different intersecting dimensions of thepolitical question doctrine by viewing them from the broader canvass ofhistory. Political questions are defined as “those questions which underthe Constitution, are to be decided by the people in their sovereigncapacity, or in regard to which full discretionary authority has beendelegated to the legislative or executive branch of government.”2 They havetwo aspects: (1) those matters that are to be exercised by the people intheir primary political capacity and (2) matters which have beenspecifically delegated to some other department or particular office of thegovernment, with discretionary power to act.3 The exercise of thediscretionary power of the legislative or executive branch of governmentwas often the area where the Court had to wrestle with the politicalquestion doctrine.4

A brief review of some of our case law will thus give us a sharperperspective of the political question doctrine. This question confrontedthe Court as early as 1905 in the case ofBarcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of thePhilippine Commission, suspended the privilege of the writ of habeas corpusin Cavite and Batangas based on a finding of open insurrection in saidprovinces. Felix Barcelon, who was detained by constabulary officers inBatangas, filed a petition for the issuance of a writ of habeas corpusalleging that there was no open insurrection in Batangas. The issue toresolve was whether or not the judicial department may investigate thefacts upon which the legislative (the Philippine Commission) and executive(the Governor-General) branches of government acted in suspending theprivilege of the writ.

The Court ruled that under our form of government, one department has noauthority to inquire into the acts of another, which acts are performedwithin the discretion of the other department.6 Surveying American law andjurisprudence, it held that whenever a statute gives discretionary power toany person, to be exercised by him upon his own opinion of certain facts,the statute constitutes him the sole judge of the existence of thosefacts.7 Since the Philippine Bill of 1902 empowered the Philippine


38

Commission and the Governor-General to suspend the privilege of the writ ofhabeas corpus, this power is exclusively within the discretion of thelegislative and executive branches of government. The exercise of thisdiscretion is conclusive upon the courts.8

The Court further held that once a determination is made by theexecutive and legislative departments that the conditions justifying theassailed acts exists, it will presume that the conditions continue untilthe same authority decide that they no longer exist.9 It adoptedthe rationale that the executive branch, thru its civil and militarybranches, are better situatedto obtain information about peace and orderfrom every corner of the nation, in contrast with the judicial department,with its very limited machinery.10 The seed of the political questiondoctrine was thus planted in Philippine soil.

The doctrine barring judicial review because of the political questiondoctrine was next applied to the internal affairs of the legislature. TheCourt refused to interfere in the legislative exercise of disciplinarypower over its own members. In the 1924 case of Alejandrino v.Quezon,11 Alejandrino, who was appointed Senator by the Governor-General,was declared by Senate Resolution as guilty of disorderly conduct forassaulting another Senator in the course of a debate, and was suspendedfrom office for one year. Senator Alejandrino filed a petition formandamus and injunction to compel the Senate to reinstate him. The Courtheld that under the Jones Law, the power of the Senate to punish itsmembers for disorderly behavior does not authorize it to suspend anappointive member from the exercise of his office. While the Court foundthat the suspension was illegal, it refused to issue the writ of mandamuson the ground that "the Supreme Court does not possess the power ofcoercion to make the Philippine Senate take any particular action. [T]hePhilippine Legislature or any branch thereof cannot be directly controlledin the exercise of their legislative powers by any judicial process."12

The issue revisited the Court twenty-two (22) years later. In 1946,in Vera v. Avelino,13 three senators-elect who had been prevented fromtaking their oaths of office by a Senate resolution repaired to this Courtto compel their colleagues to allow them to occupy their seats contendingthat only the Electoral Tribunal had jurisdiction over contests relating totheir election, returns and qualifications. Again, the Court refused tointervene citing Alejandrino and affirmed the inherent right of thelegislature to determine who shall be admitted to its membership.

In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eightrepresentatives who were proclaimed elected by Comelec were not allowed byCongress to take part in the voting for the passage of the Parity amendmentto the Constitution. If their votes had been counted, the affirmativevotes in favor of the proposed amendment would have been short of thenecessary three-fourths vote in either House of Congress to pass theamendment. The amendment was eventually submitted to the people forratification. The Court declined to intervene and held that a proposal toamend the Constitution is a highly political function performed by Congressin its sovereign legislative capacity.15


39

In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen,assailed the legality of his detention ordered by the Senate for hisrefusal to answer questions put to him by members of one of itsinvestigating committees. This Court refused to order his release holdingthat the process by which a contumacious witness is dealt with by thelegislature is a necessary concomitant of the legislative process and thelegislature's exercise of its discretionary authority is not subject tojudicial interference.

In the 1960 case of Osmena v. Pendatun,17 the Court followed thetraditional line. Congressman Sergio Osmena, Jr. was suspended by the Houseof Representatives for serious disorderly behavior for making a privilegespeech imputing "malicious charges" against the President of thePhilippines. Osmena, Jr. invoked the power of review of this Court but theCourt once more did not interfere with Congress' power to discipline itsmembers.

The contours of the political question doctrine have always beentricky. To be sure, the Court did not always stay its hand whenever thedoctrine is invoked. In the 1949 case ofAvelino v. Cuenco,18 SenatePresident Jose Avelino, who was deposed and replaced, questioned hissuccessor's title claiming that the latter had been elected without aquorum. The petition was initially dismissed on the ground that theselection of Senate President was an internal matter and not subject tojudicial review.19 On reconsideration, however, the Court ruled that itcould assume jurisdiction over the controversy in light of subsequentevents justifying intervention among which was the existence of aquorum.20 Though the petition was ultimately dismissed, the Court declaredrespondent Cuenco as the legally elected Senate President.

In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdictionover a dispute involving the formation and composition of the SenateElectoral Tribunal. It rejected the Solicitor General's claim that thedispute involved a political question. Instead, it declared that the Senateis not clothed with "full discretionary authority" in the choice of membersof the Senate Electoral Tribunal and the exercise of its power thereon issubject to constitutional limitations which are mandatory in nature.22 Itheld that under the Constitution, the membership of the Senate ElectoralTribunal was designed to insure the exercise of judicial impartiality inthe disposition of election contests affecting members of the lawmakingbody.23 The Court then nullified the election to the Senate ElectoralTribunal made by Senators belonging to the party having the largest numberof votes of two of their party members but purporting to act on behalf ofthe party having the second highest number of votes.

In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment onwhether Congress had formed the Commission on Appointments in accordancewith the Constitution and found that it did not. It declared that theCommission on Appointments is a creature of the Constitution and its powerdoes not come from Congress but from the Constitution.

The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not


40

Congress, acting as a constituent assembly in proposing amendments to theConstitution violates the Constitution was held to be a justiciable and nota political issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfiedthe three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, ofthe Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon theground that the apportionment had not been made as may be possibleaccording to the number of inhabitants of each province. Thus, werejected the theory, advanced in these four cases, that the issuestherein raised were political questions the determination of whichis beyond judicial review.”27

The Court explained that the power to amend the Constitution or topropose amendments thereto is not included in the general grant oflegislative powers to Congress. As a constituent assembly, the members ofCongress derive their authority from the fundamental law and they do nothave the final say on whether their acts are within or beyondconstitutional limits.28 This ruling was reiterated in Tolentino which heldthat acts of a constitutional convention called for the purpose ofproposing amendments to the Constitution are at par with acts of Congressacting as a constituent assembly.29

In sum, this Court brushed aside the political question doctrine andassumed jurisdiction whenever it found constitutionally-imposed limits onthe exercise of powers conferred upon the Legislature.30

The Court hewed to the same line as regards the exercise of Executivepower. Thus, the respect accorded executive discretion was observedin Severino v. Governor-General,31 where it was held that the Governor-General, as head of the executive department, could not be compelled by


41

mandamus to call a special election in the town of Silay for the purpose ofelecting a municipal president. Mandamus and injunction could not lie toenforce or restrain a duty which is discretionary. It was held that whenthe Legislature conferred upon the Governor-General powers and duties, itdid so for the reason that he was in a better position to know the needs ofthe country than any other member of the executive department, and withfull confidence that he will perform such duties as his best judgmentdictates.32

Similarly, in Abueva v. Wood,33 the Court held that the Governor-Generalcould not be compelled by mandamus to produce certain vouchers showing thevarious expenditures of the Independence Commission. Under the principleof separation of powers, it ruled that it was not intended by theConstitution that one branch of government could encroach upon the field ofduty of the other. Each department has an exclusive field within which itcan perform its part within certain discretionary limits.34 It observed that"the executive and legislative departments of government are frequentlycalled upon to deal with what are known as political questions, with whichthe judicial department of government has no intervention. In all suchquestions, the courts uniformly refused to intervene for the purpose ofdirecting or controlling the actions of the other department; suchquestions being many times reserved to those departments in the organic lawof the state."35

In Forties v. Tiaco,36 the Court also refused to take cognizance of acase enjoining the Chief Executive from deporting an obnoxious alien whosecontinued presence in the Philippines was found by him to be injurious tothe public interest. It noted that sudden and unexpected conditions mayarise, growing out of the presence of untrustworthy aliens, which demandimmediate action. The President's inherent power to deport undesirablealiens is universally denominated as political, and this power continues toexist for the preservation of the peace and domestic tranquility of thenation.37

In Manalang v. Quitoriano,38 the Court also declined to interfere in theexercise of the President's appointing power. It held that the appointingpower is the exclusive prerogative of the President, upon which nolimitations may be imposed by Congress, except those resulting from theneed of securing concurrence of the Commission on Appointments and from theexercise of the limited legislative power to prescribe qualifications to agiven appointive office.

We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, thisCourt has held that as Commander-in-Chief of the Armed Forces, thePresident has the power to determine whether war, in the legal sense, stillcontinues or has terminated. It ruled that it is within the province ofthe political department and not of the judicial department of governmentto determine when war is at end.39

In 1952, the Court decided the landmark case of Montenegro v.Castaneda.40 President Quirino suspended the privilege of the writ of habeascorpus for persons detained or to be detained for crimes of sedition,


42

insurrection or rebellion. The Court, citing Barcelon, declared that theauthority to decide whether the exigency has arisen requiring thesuspension of the privilege belongs to the President and his decisionis final and conclusive on the courts.41

Barcelon was the ruling case law until the 1971 case of Lansang v.Garcia came.42 Lansang reversed the previous cases and held that thesuspension of the privilege of the writ of habeas corpus was not apolitical question. According to the Court, the weight of Barcelon wasdiluted by two factors: (1) it relied heavily on Martin v. Mott, whichinvolved the U.S. President's power to call out the militia which is a muchbroader power than suspension of the privilege of the writ; and (2) theprivilege was suspended by the American Governor-General whose act, asrepresentative of the sovereign affecting the freedom of its subjects,could not be equated with that of the President of the Philippines dealingwith the freedom of the sovereign Filipino people.

The Court declared that the power to suspend the privilege of the writof habeas corpus is neither absolute nor unqualified because theConstitution sets limits on the exercise of executive discretion on thematter. These limits are: (1) that the privilege must not be suspendedexcept only in cases of invasion, insurrection or rebellion or imminentdanger thereof; and (2) when the public safety requires it, in any of whichevents the same may be suspended wherever during such period the necessityfor the suspension shall exist. The extent of the power which may beinquired into by courts is defined by these limitations.43

On the vital issue of how the Court may inquire into the President'sexercise of power, it ruled that the function of the Court is not tosupplant but merely to check the Executive; to ascertain whether thePresident has gone beyond the constitutional limits of his jurisdiction,not to exercise the power vested in him or to determine the wisdom of hisact. Judicial inquiry is confined to the question of whether the Presidentdid not act arbitrarily.44 Using this yardstick, the Court found that thePresident did not.

The emergency period of the 1970's flooded the Court with cases whichraised the political question defense. The issue divided the Court downthe middle. Javellana v. Executive Secretary45 showed that while a majorityof the Court held that the issue of whether or not the 1973 Constitutionhad been ratified in accordance with the 1935 Constitution was justiciable,a majority also ruled that the decisive issue of whether the 1973Constitution had come into force and effect, with or without constitutionalratification, was a political question.46

The validity of the declaration of martial law by then President Marcoswas next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheldthe President's declaration of martial law. On whether the validity of theimposition of martial law was a political or justiciable question, theCourt was almost evenly divided. One-half embraced the political questionposition and the other half subscribed to the justiciable position inLansang. Those adhering to the political question doctrine used differentmethods of approach to it.48


43

In 1983, the Lansang ruling was weakened by the Court in Garcia-Padillav. Enrile.49 The petitioners therein were arrested and detained by thePhilippine Constabulary by virtue of a Presidential Commitment Order(PCO). Petitioners sought the issuance of a writ of habeas corpus. TheCourt found that the PCO had the function of validating a person'sdetention for any of the offenses covered in Proclamation No. 2045 whichcontinued in force the suspension of the privilege of the writ of habeascorpus. It held that the issuance of the PCO by the President was notsubject to judicial inquiry.50 It went further by declaring that there was aneed to re-examine Lansang with a view to reverting to Barcelon andMontenegro. It observed that in times of war or national emergency, thePresident must be given absolute control for the very life of the nationand government is in great peril. The President, it intoned, is answerableonly to his conscience, the people, and God.51

But barely six (6) days after Garcia-Padilla, the Courtpromulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held that bythe power of judicial review, the Court must inquire into every phase andaspect of a person's detention from the moment he was taken into custody upto the moment the court passes upon the merits of the petition. Only aftersuch a scrutiny can the court satisfy itself that the due process clause ofthe Constitution has been met.53

It is now history that the improper reliance by the Court on thepolitical question doctrine eroded the people's faith in its capacity tocheck abuses committed by the then Executive in the exercise of hiscommander-in-chief powers, particularly violations against humanrights. The refusal of courts to be pro-active in the exercise of itschecking power drove the people to the streets to resort to extralegalremedies. They gave birth to EDSA.

Two lessons were not lost to the members of the ConstitutionalCommission that drafted the 1987 Constitution. The first was the need togrant this Court the express power to review the exercise of the powers ascommander-in-chief by the President and deny it of any discretion todecline its exercise. The second was the need to compel the Court to bepro-active by expanding its jurisdiction and, thus, reject its laid backstance against acts constituting grave abuse of discretion on the part ofany branch or instrumentality of government. Then Chief Justice RobertoConcepcion, a member of the Constitutional Commission, worked for theinsertion of the second paragraph of Section 1, Article VIII in the draftConstitution,54 which reads:

"Sec. 1. x x x.

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."


44

The language of the provision clearly gives the Court the power to strikedown acts amounting to grave abuse of discretion of both the legislativeand executive branches of government.

We should interpret Section 18, Article VII of the 1987 Constitution inlight of our constitutional history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary,he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writof habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamationof martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or inwriting to Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner,extend such proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persistand public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

x x x."

It is clear from the foregoing that the President, as Commander-in-Chief ofthe armed forces of the Philippines, may call out the armed forces subjectto two conditions: (1) whenever it becomes necessary; and (2) to prevent orsuppress lawless violence, invasion or rebellion. Undeniably, theseconditions lay down thesine qua requirement for the exercise of the power andthe objective sought to be attained by the exercise of the power. Theydefine the constitutional parameters of the calling out power. Whether ornot there is compliance with these parameters is a justiciable issue and isnot a political question.


45

I am not unaware that in the deliberations of the ConstitutionalCommission, Commissioner Bernas opined that the President's exercise of the"calling out power," unlike the suspension of the privilege of the writ ofhabeas corpus and the declaration of martial law, is not a justiciableissue but a political question and therefore not subject to judicialreview.

It must be borne in mind, however, that while a member's opinionexpressed on the floor of the Constitutional Convention is valuable, it isnot necessarily expressive of the people's intent.55 The proceedings of theConvention are less conclusive on the proper construction of thefundamental law than are legislative proceedings of the proper constructionof a statute, for in the latter case it is the intent of the legislaturethe courts seek, while in the former, courts seek to arrive at the intentof the people through the discussions and deliberations of theirrepresentatives.56 The conventional wisdom is that the Constitution does notderive its force from the convention which framed it, but from the peoplewho ratified it, the intent to be arrived at is that of the people.57

It is true that the third paragraph of Section 18, Article VII of the1987 Constitution expressly gives the Court the power to review thesufficiency of the factual bases used by the President in the suspension ofthe privilege of the writ of habeas corpus and the declaration of martiallaw. It does not follow, however, that just because the same provision didnot grant to this Court the power to review the exercise of the calling outpower by the President, ergo, this Court cannot pass upon the validity ofits exercise.

Given the light of our constitutional history, this express grant ofpower merely means that the Court cannot decline the exercise of its powerbecause of the political question doctrine as it did in the past. In fine,the express grant simply stresses the mandatory duty of this Court to checkthe exercise of the commander-in-chief powers of the President. Iteliminated the discretion of the Court not to wield its power of reviewthru the use of the political question doctrine.

It may be conceded that the calling out power may be a "lesser power"compared to the power to suspend the privilege of the writ of habeas corpusand the power to declare martial law. Even then, its exercise cannot beleft to the absolute discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our peopleprotected by the Constitution cannot be downgraded. We cannot hold thatacts of the commander-in-chief cannot be reviewed on the ground that theyhave lesser impact on the civil and political rights of our people. Theexercise of the calling out power may be "benign" in the case at bar butmay not be so in future cases.

The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissentingand Concurring Opinion in Lansang that it would be dangerous and misleadingto push the political question doctrine too far, is apropos. It will not becomplementary to the Court if it handcuffs itself to helplessness when agrievously injured citizen seeks relief from a palpably unwarranted use of


46

presidential or military power, especially when the question at issue fallsin the penumbra between the "political" and the "justiciable. "58

We should not water down the ruling that deciding whether a matter hasbeen committed by the Constitution to another branch of government, orwhether the action of that branch exceeds whatever authority has beencommitted, is a delicate exercise in constitutional interpretation, and isa responsibility of the Court as ultimate interpreter of the fundamentallaw.59 When private justiciable rights are involved in a suit, theCourt must not refuse to assume jurisdiction even though questions of extremepolitical importance are necessarily involved.60 Every officer under aconstitutional government must act according to law and subject to thecontrolling power of the people, acting through the courts, as well asthrough the executive and legislative. One department is just asrepresentative of the other, and the judiciary is the department which ischarged with the special duty of determining the limitations which the lawplaces upon all official action.61 This historic role of the Court is thefoundation stone of a government of laws and not of men.62

I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:

In the equation of judicial power, neither of two extremes - onetotalistic and the other bounded - is acceptable nor ideal. The 1987Constitution has introduced its definition of the term "judicial power" tobe that which -

“x x x includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction onthe part of any branch or instrumentality of the Government.”1

It is not meant that the Supreme Court must be deemed vested with theawesome power of overseeing the entire bureaucracy, let alone ofinstitutionalizing judicial absolutism, under its mandate. But while thisCourt does not wield unlimited authority to strike down an act of its twoco-equal branches of government, it must not wither under technical guiseon its constitutionally ordained task to intervene, and to nullify if needbe, any such act as and when it is attended by grave abuse ofdiscretion amounting to lack or excess of jurisdiction. The proscriptionthen against an interposition by the Court into purely political questions,heretofore known, no longer holds within that context.

Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidatedin his concurring opinion:


47

"x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well."3

It is here when the Court must have to depart from the broad principle ofseparation of powers that disallows an intrusion by it in respect to thepurely political decisions of its independent and coordinate agencies ofgovernment.

The term grave abuse of discretion is long understood in ourjurisprudence as being, and confined to, a capricious and whimsical ordespotic exercise of judgment amounting to lack or excess ofjurisdiction. Minus the not-so-unusual exaggerations often invoked bylitigants in the duel of views, the act of the President in simply callingon the Armed Forces of the Philippines, an executive prerogative, to assistthe Philippine National Police in "joint visibility patrols" in themetropolis does not, I believe, constitute grave abuse of discretion thatwould now warrant an exercise by the Supreme Court of its extraordinarypower as so envisioned by the fundamental law.

Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner tobe without standing to question the validity of LOI 02/2000 which mandatesthe Philippine Marines to conduct "joint visibility" patrols with thepolice in Metro Manila. But I dissent insofar as the opinion dismisses thepetition in this case on other grounds. I submit that judgment on thesubstantive constitutional issues raised by petitioner must await an actualcase involving real parties with "injuries" to show as a result of theoperation of the challenged executive action. While as an organization forthe advancement of the rule of law petitioner has an interest in upholdingthe Constitution, its interest is indistinguishable from the interest ofthe rest of the citizenry and falls short of that which is necessary togive petitioner standing.

As I have indicated elsewhere, a citizens' suit challenging theconstitutionality of governmental action requires that (1) the petitionermust have suffered an "injury in fact" of an actual or imminent nature; (2)there must be a causal connection between the injury and the conductcomplained of; and (3) the injury is likely to be redressed by a favorableaction by this Court.1 The "injury in fact" test requires more than injuryto a cognizable interest. It requires that the party seeking review behimself among those injured.2

My insistence on compliance with the standing requirement is grounded inthe conviction that only a party injured by the operation of thegovernmental action challenged is in the best position to aid the Court in


48

determining the precise nature of the problem presented. Many a time wehave adverted to the power of judicial review as an awesome power not to beexercised save in the most exigent situation. For, indeed, sound judgmenton momentous constitutional questions is not likely to be reached unless itis the result of a clash of adversary arguments which only parties withdirect and specific interest in the outcome of the controversy canmake. This is true not only when we strike down a law or official actionbut also when we uphold it.

In this case, because of the absence of parties with real andsubstantial interest to protect, we do not have evidence on the effect ofmilitary presence in malls and commercial centers, i.e., whether suchpresence is coercive or benign. We do not know whether the presence of somany marines and policemen scares shoppers, tourists, and peacefulcivilians, or whether it is reassuring to them. To be sure, the deploymentof troops to such places is not like parading them at the Luneta onIndependence Day. Neither is it, however, like calling them out because ofactual fighting or the outbreak of violence.

We need to have evidence on these questions because, under theConstitution, the President's power to call out the armed forces in orderto suppress lawless violence, invasion or rebellion is subject to thelimitation that the exercise of this power is required in the interest ofpublic safety.3

Indeed, whether it is the calling out of the armed forces alone in orderto suppress lawless violence, invasion or rebellion or also the suspensionof the privilege of the writ of habeas corpus or the proclamation ofmartial law (in case of invasion or rebellion), the exercise of thePresident's powers as commander-in-chief, requires proof - not mereassertion.4 As has been pointed out, "Standing is not `an ingeniousacademic exercise in the conceivable' . . . but requires . . . a factualshowing of perceptible harm."5

Because of the absence of such record evidence, we are left to guess oreven speculate on these questions. Thus, at one point, the majorityopinion says that what is involved here is not even the calling out of thearmed forces but only the use of marines for law enforcement. (p. 13) Atanother point, however, the majority opinion somersaults and says thatbecause of bombings perpetrated by lawless elements, the deployment oftroops in shopping centers and public utilities is justified. (p. 24)

We are likely to err in dismissing the suit brought in this case on theground that the calling out of the military does not violate theConstitution, just as we are likely to do so if we grant the petition andinvalidate the executive issuance in question. For indeed, the lack of areal, earnest and vital controversy can only impoverish the judicialprocess. That is why, as Justice Laurel emphasized in the Angara case,"this power of judicial review is limited to actual cases and controversiesto be exercised after full opportunity of argument by the parties, andlimited further to the constitutional question raised or the very lismota presented."6


49

We are told, however, that the issues raised in this case are of"paramount interest" to the nation. It is precisely because the issuesraised are of paramount importance that we should all the more foregoruling on the constitutional issues raised by petitioner and limit thedismissal of this petition on the ground of lack of standing ofpetitioner. A Fabian policy of leaving well enough alone is a counsel ofprudence.

For these reasons and with due appreciation of the scholarly attentionlavished by the majority opinion on the constitutional questions raised, Iam constrained to limit my concurrence to the dismissal of this suit on theground of lack of standing of petitioner and the consequent lack of anactual case or controversy.

1 Sec. 1, Article VIII, 1987 Constitution.2 Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.3 Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].4 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].5 5 Phil. 87 [1905].6 Id. at 97.7 Id. at 104.8 See Cruz, Philippine Political law, p. 87 [1998].9 Id. at 113-114.10 Id. at 106-107.11 46 Phil. 83 [1924].12 Id. at 97.13 77 Phil. 192 [1946].14 78 Phil. 1 [1947].15 Id. at 4-5. The court also adopted the enrolled bill theory which, like findings underthe political question doctrine, “imports absolute verity on the courts”-at 12.16 97 Phil. 358 [1955].17 109 Phil. 863 [1960].18 83 Phil. 17 [1949].19 Id. at 21-22.20 Id. at 68-69.21 103 Phil. 1051 [1957].22 Id. at 1068.23 Id. at 1083.24 5 SCRA 1 [1962].25 21 SCRA 774 [1967].26 41 SCRA 702 [1971].27 Id. at 785-786.28 Id. at 787.29 41 SCRA at 713.30 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].31 16 Phil. 366 [1910].32 Id. at 401.33 45 Phil. 612 [1924].34 Id. At 630.35 Id. at 637-638.36 16 Phil. 534 [1910].37 Id. at 568-569, 576.38 94 Phil. 903 [1954].


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39 Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].40 91 Phil. 882 [1952].41 Id. at 887.42 42 SCRA 448 [1971].43 Id. at 474.44 Id. at 480-481.45 50 SCRA 30 [1973].46 Id. at 138, 140-141.47 59 SCRA 183 [1973].48 Ibid.49 121 SCRA 472 [1983].50 Id. at 490-491.51 Id. at 500-501.52 121 SCRA 538 [1983].53 Id. at 563.54 See Concepcion’s sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the Philippines A Commentary, p. 863 [1996].55 J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].56 Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4thed., p. 454 [1998].57 Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].58 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].59 Baker v. Carr, 7 L Ed 2d at 682.60 Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].61 Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].62 Id.1 Section 1, Article VIII of the Constitution.2 83 Phil. 17.3 Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA756.1 Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of the Philippines v. COMELEC, 289 SCRA 343 (1998).2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).3 See CONST., ART. VII, §18.4 See Lansang v. Garcia, 42 SCRA 448 (1971).5 Lujan v. Defenders of Wildlife, supra.6 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)

[1] Rollo, pp. 17-21.[2] As of 19 May 2000, the Marines have been recalled from their areas of deployment tojoin the military operations in Mindanao, and replaced by Air Force personnel who tookover their functions in the joint visibility patrols. The Air Force personnel, just likethe Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since boththe Marines and Air Force belong to the Armed Forces, the controversy has not beenrendered moot and academic by the replacement of the former by the latter. The validityof the deployment of the armed forces in the joint visibility patrols thus remain anissue.[3] Rollo, pp. 75-76.[4] Id., at 75.[5] Id.[6] Id.[7] Rollo, p. 75.


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[8] Id., at 17-18.[9] Id.[10] Rollo, p. 7.[11] Id., at 24.[12] Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994)citing Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990);Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, Peoplev. Vera, 65 Phil. 56(1937).[13] Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).[14] Ibid., citing House International Building Tenants Association, Inc. v. IntermediateAppellate Court, 151 SCRA 703 (1987).[15] Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).[16] Joya v. Presidential Commission on Good Government, supra note 13, at579 citing Dumlao v. Commission on Elections, 95 SCRA 392 (1980).[17] Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)citing Garcia v. Executive Secretary, 211 SCRA 219 (1992); Osmeña v. COMELEC, 199 SCRA 750(1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Aranetav. Dinglasan, 84 Phil. 368 (1949).[18] Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on GoodGovernment, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr.Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr.,[232 SCRA 110 (1994)] "(a) party's standing before this Court is a proceduraltechnicality which it may, in the exercise of its discretion, set aside in view of theimportance of the issues raised," favorably citing our ruling in the Emergency PowersCases [L-2044 (Araneta v. Dinglasan); L-2756 (Araneta v. Angeles); L-3054(Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)]where this Court brushed aside this technicality because "the transcendental importanceto the public of these cases demands that they be settled promptly and definitely,brushing aside, if we must, technical rules of procedure." An inflexible rule on locusstandi would result in what Mr. Justice Florentino P. Feliciano aptly described as a“doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250SCRA 130 (1995)].[19] Rollo, p. 12[20] Article II, Sections 4 and 5 of the Constitution provide:

Sec. 4. The prime duty of the Government is to serve and protect the people. TheGovernment may call upon the people to defend the State and, in the fulfillment thereof,all citizens may be required, under conditions provided by law, to render personal,military or civil service.

Sec. 5. The maintenance of peace and order, the protection of life, liberty, andproperty, and the promotion of the general welfare are essential for the enjoyment by allthe people of the blessings of democracy.[21] 177 SCRA 668, 694 (1989).[22] WEST’S LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).[23] 103 Phil. 1051 (1957).[24] 369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).[25] Article VIII, Sec. 1 of the 1987 CONSTITUTION.[26] Santiago v. Guingona, Jr., 298 SCRA 756 (1998).[27] Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).[28] Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988);Coseteng v. Mitra, 187 SCRA 377 (1990).


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[29] Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC,165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).[30] Ledesma v. Court of Appeals, 278 SCRA 659 (1997).[31] Bondoc v. Pineda, 201 SCRA 792 (1991).[32] Drilon v. Lim, 235 SCRA 135 (1994).[33] Sarmiento v. Mison, 156 SCRA 549 (1987).[34] II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412(1986).[35] Rollo, p. 75.[36] Section 3, provides:

Civilian authority, is at all times, supreme over the military. The ArmedForces of the Philippines is the protector of the people and the State. Its goal is tosecure the sovereignty of the State and the integrity of the national territory.[37] No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:

a. RD, NCRPO is designated as Task Force Commander “TULUNGAN”.[38] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

b. Before their deployment/employment, receiving units shall properly brief/orient thetroops on police patrol/visibility procedures.[39] No. 8 of the LOI provides: TASKS:

k. POLICE DISTRICTS/STATIONS

-Provide direction and manage the deployment of all Philippine Marines personnel deployedin your AOR for police visibility operations.

-Conduct briefing/orientation to Philippine Marines’ personnel on the do’s and don’ts ofpolice visibility patrols.

-Provide transportation to Philippine Marines from districts headquarters to differentstations and PCPs.

-Perform other tasks as directed.[40] No. 8 of the LOI states: TASKS:

c. RLD/R4

-Coordinate with the Directorate for Logistics for the issuance of the followingequipments (sic) to be utilize (sic) by the Philippine Marines personnel: 500 piecesProbaton, 500 whistle (sic), 500 pieces brazzard blazoned.

-Coordinate with the Directorate for Logistics for the issuance of the following for useof PNP personnel involved in the visibility patrol operations:

1,000 sets of PNP GOA Uniform

500 each raincoats

500 each Probaton

500 each Whistle

500 each handcuffs

500 each Combat Boots

500 each low cut shoes

-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQPNP.


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-Provide additional gas allocation to Philippine Marines’ members of the InspectionTeams.

- Perform other tasks as directed.40[41] Sec. 5(4), Article XVI, provides:

No member of the Armed Forces in the active service shall, at any time, beappointed in the government including government-owned and controlled corporations or anyof their subsidiaries.[42] CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which isentitled “In Re Guidelines for the Designation of Registration Centers and theAccountable Officers for the Polaroid Instant Cameras for Purposes of the Registration ofVoters on 8-9 May 1999 in the Autonomous Region in Muslim Mindanao;” Comelec ResolutionNo. 3059 (1999), which is entitled, “In the Matter of Deputizing the Armed Forces of thePhilippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navyand Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and PeacefulPrecinct Mapping, Registration of Voters and the Holding of the September 13, 1999Elections in the Autonomous Region in Muslim Mindanao (ARMM);” Republic Act No. 7166(1991), Section 33, which is entitled “An Act Providing for Synchronized National andLocal Elections and for Electoral Reforms, Authorizing Appropriations therefor, and forother Purposes;” Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1,Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3)(1985), which is also known as “Omnibus Election Code.”[43] Republic Act No. 95 (1947), Section 5, which is entitled “An Act to Incorporate thePhilippine National Red Cross Section;” Republic Act No. 855 (1953), Section 1, which isentitled “An Act to Amend Section V of Republic Act Numbered Ninety-Five, entitled “AnAct to Incorporate the Philippine National Red Cross.”[44] Republic Act No. 7077 (1991), Article III, Section 7, which is entitled “An ActProviding for the Development, Administration, Organization, Training, Maintenance andUtilization of the Citizen Armed Forces of the Armed Forces of the Philippines and forother Purposes.”[45] Republic Act No. 6847 (1990), Section 7, which is entitled “An Act Creating andEstablishing The Philippine Sports Commission, Defining its Powers, Functions andResponsibilities, Appropriating Funds therefor, and for other Purposes.”[46] Republic Act No. 8492 (1998), Section 20, which is entitled “An Act Establishing aNational Museum System, Providing for its Permanent Home and for other Purposes.”[47] Republic Act No. 8550 (1998), Section 124, which is entitled “An Act Providing for theDevelopment, Management and Conservation of the Fisheries and Aquatic Resources,Integrating All Laws Pertinent Thereto, and for other Purposes;” Memorandum Circular No.150 (1996), which is entitled “Amending Memorandum Circular No. 128, dated July 20, 1995by Reorganizing the Presidential Task Force on Tubbataha Reef National MarinePark;” Executive Order No. 544 (1979), Letter I, which is entitled “Creating aPresidential Committee for the Conservation of the Tamaraw, Defining its Powers and forother Purposes.”[48] Executive Order No. 129-A (1987) Section 5 (m), which is entitled “ModifyingExecutive Order No. 129 Reorganizing and Strengthening the Department of Agrarian Reformand for other Purposes.”[49] Republic Act No. 1937 (1957), Section 2003, which is entitled “An Act to Revised andCodify the Tariff and Customs Laws of the Philippines;” Executive Order No. 45 (1998),which is entitled “Creating a Presidential Anti-Smuggling Task Force to Investigate andProsecute Crimes Involving Large-Scale Smuggling and other Frauds upon Customs andProviding Measures to Expedite Seizure Proceedings;”[50] These cases involved joint military and civilian law enforcement operations: People v.Escalante, G.R No. 106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17,1993; People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631(1990). (This case recognizes the complementary roles of the PNP and the military in


54

conducting anti-crime campaigns, provided that the people’s rights are not violated inthese words: “If the military and the police must conduct concerted campaigns to flushout and catch criminal elements, such drives must be consistent with the constitutionaland statutory rights of all people affected by such actions.” The creation of the TaskForce also finds support in Valmonte v. de Villa, 185 SCRA 665 (1990). Executive Order No. 62(1999), which is entitled “Creating the Philippine Center on Transnational Crime toFormulate and Implement a Concerted Program of Action of All Law Enforcement,Intelligence and other Agencies for the Prevention and Control of Transnational Crime;”Executive Order No. 8 (1998), which is entitled “Creating a Presidential Anti-OrganizedCrime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate andProsecute Criminal Elements in the Country;” Executive Order No. 280 (1995), which isentitled “Creating a Presidential Task Force of Intelligence and Counter-Intelligence toIdentify, Arrest and Cause the Investigation and Prosecution of Military and other LawEnforcement Personnel on their Former Members and Their Cohorts Involved in CriminalActivities.”[51] Memorandum Circular No. 141 (1996), which is entitled “Enjoining Government AgenciesConcerned to Extend Optimum Support and Assistance to the Professional RegulationCommission in its Conduct of Licensure Examinations.”[52] Memorandum Circular No. 32 (1999), which is entitled “Directing the GovernmentAgencies Concerned to Extend Maximum Support and Assistance to the National EducationalTesting and Research Center (NETRC) of the Department of Education, Culture and Sports(DECS) in the Conduct of Tests of National Coverage.”[53] Executive Order No. 61 (1999), which is entitled “Creating the National Drug LawEnforcement and Prevention Coordinating Center to Orchestrate Efforts of nationalGovernment Agencies, Local Government Units, and Non-Government Organizations for a MoreEffective Anti-Drug Campaign.”[54] Republic Act No. 4089 (1964), which is entitled “An Act Making the City HealthOfficer of Bacolod City the Local Civil Registrar, Amending for the Purpose SectionForty-Three of the Charter of said City;" Republic Act No. 537 (1950), which is entitled"An Act to Revise the Charter of Quezon City;” Commonwealth Act No. 592 (1940), which isentitled “An Act to Create the City of Dansalan;” Commonwealth Act No. 509 (1939), whichis entitled “An Act to Create Quezon City;” Commonwealth Act No. 326 (1938), which isentitled “An Act Creating the City of Bacolod;” Commonwealth Act No. 39 (1936), which isentitled “An Act Creating the City of Zamboanga;” Commonwealth Act No. 51 (1936), whichis entitled “An Act Creating the City of Davao.”[55] Republic Act No. 36 (1946), which is entitled “Census Act of Nineteen Hundred andForty-Six.”[56] Republic Act No. 776 (1952), Section 5, which is entitled “An Act to Reorganize theCivil Aeronautics Board and the Civil Aeronautics Administration, To Provide for theRegulation of Civil Aeronautics in the Philippines and Authorizing the Appropriation ofFunds Therefor.”[57] Republic Act No. 6613 (1972), Section 4, which is entitled “An Act Declaring a Policyof the State to Adopt Modern Scientific Methods to Moderate Typhoons and PreventDestruction by Floods, Rains and Droughts, Creating a Council on Typhoons and PreventDestruction by Flood, Rains and Droughts, Creating a Council on Typhoon Moderation andFlood Control Research and Development, Providing for its Powers and Functions andAppropriating Funds Therefor.”[58] Local Government Code of 1991, Book I, Title Seven, Section 116.[59] This theory on gloss of executive power was advanced by Justice Frankfurter in hisconcurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).[60] Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).[61] 18 U.S.C.A § 1385 (1878).[62] Ibid.[63] Bissonette v. Haig, supra note 60, at 1390.


55

[64] A power regulatory in nature is one which controls or directs. It is proscriptive if itprohibits or condemns and compulsory if it exerts some coercive force. See US v. Yunis, 681F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONSON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,[65] L.O.I. 02/2000, “TULUNGAN,” Rollo, pp. 17-22.

[66] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformedPNP personnel dedicated for police visibility patrols in tandem with the PhilippineMarines.

b. Before their deployment/employment, receiving units shall properly brief/orient thetroops on police patrol/visibility procedures.66

[67] Supra note 34.[68] Supra note 32.

[69] No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest policestations/PCPs.[70] Supra note 35.[71] Rollo, p. 70.

SUPREME COURT FIRST DIVISION

MAXIMO CALALANG, Petitioner, -versus- G.R. No. 47800

December 2, 1940 A. D. WILLIAMS, ET AL., Respondents. x--------------------------------------------------x

D E C I S I O N LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as ataxpayer of Manila, brought before this court this petition fora writ of prohibition against the respondents, A. D. Williams,as Chairman of the National Traffic Commission; VicenteFragante, as Director of Public Works; Sergio Bayan, as ActingSecretary of Public Works and Communications; Eulogio Rodriguez,as Mayor of the City of Manila; and Juan Dominguez, as ActingChief of Police of Manila. chanroblespublishingcompany

It is alleged in the petition that the National TrafficCommission, in its resolution of July 17, 1940, resolved torecommend to the Director of Public Works and to the Secretary


56

of Public Works and Communications that animal-drawn vehicles beprohibited from passing along Rosario Street extending fromPlaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m.to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along RizalAvenue extending from the railroad crossing at Antipolo Streetto Echague Street, from 7 a.m. to 11 p.m., from a period of oneyear from the date of the opening of the Colgante Bridge totraffic; that the Chairman of the National Traffic Commission,on July 18, 1940 recommended to the Director of Public Works theadoption of the measure proposed in the resolutionaforementioned, in pursuance of the provisions of CommonwealthAct No. 548 which authorizes said Director of Public Works, withthe approval of the Secretary of Public Works andCommunications, to promulgate rules and regulations to regulateand control the use of and traffic on national roads; that onAugust 2, 1940, the Director of Public Works, in his firstindorsement to the Secretary of Public Works and Communications,recommended to the latter the approval of the recommendationmade by the Chairman of the National Traffic Commission asaforesaid, with the modification that the closing of RizalAvenue to traffic to animal-drawn vehicles be limited to theportion thereof extending from the railroad crossing at AntipoloStreet to Azcarraga Street; that on August 10, 1940, theSecretary of Public Works and Communications, in his secondindorsement addressed to the Director of Public Works, approvedthe recommendation of the latter that Rosario Street and RizalAvenue be closed to traffic of animal-drawn vehicles, betweenthe points and during the hours as above indicated, for a periodof one year from the date of the opening of the Colgante Bridgeto traffic; that the Mayor of Manila and the Acting Chief ofPolice of Manila have enforced and caused to be enforced therules and regulations thus adopted; that as a consequence ofsuch enforcement, all animal-drawn vehicles are not allowed topass and pick up passengers in the places above-mentioned to thedetriment not only of their owners but of the riding public aswell. chanroblespublishingcompany


57

It is contended by the petitioner that Commonwealth Act No. 548by which the Director of Public Works, with the approval of theSecretary of Public Works and Communications, is authorized topromulgate rules and regulations for the regulation and controlof the use of and traffic on national roads and streets isunconstitutional because it constitutes an undue delegation oflegislative power. This contention is untenable. As was observedby this court in Rubi vs. Provincial Board of Mindoro (39 Phil,660, 700), “The rule has nowhere been better stated than in theearly Ohio case decided by Judge Ranney, and since followed in amultitude of cases, namely: ‘The true distinction therefore isbetween the delegation of power to make the law, whichnecessarily involves a discretion as to what it shall be, andconferring an authority or discretion as to its execution, to beexercised under and in pursuance of the law. The first cannot bedone; to the latter no valid objection can be made.’(Cincinnati, W. & Z. R. Co. vs. Comm’rs. Clinton County, 1 OhioSt., 88.) Discretion, as held by Chief Justice Marshall inWayman vs. Southard (10 Wheat., 1) may be committed by theLegislature to an executive department or official. TheLegislature may make decisions of executive departments orsubordinate officials thereof, to whom it has committed theexecution of certain acts, final on questions of fact. (U.S. vs.Kinkead, 248 Fed., 141.) The growing tendency in the decisionsis to give prominence to the ‘necessity’ of the case.” chanroblespublishingcompany

Section 1 of Commonwealth Act No. 548 reads as follows: “SECTION 1. To promote safe transit upon, and avoidobstructions on, roads and streets designated as nationalroads by acts of the National Assembly or by executiveorders of the President of the Philippines, the Director ofPublic Works, with the approval of the Secretary of PublicWorks and Communications, shall promulgate the necessaryrules and regulations to regulate and control the use of andtraffic on such roads and streets. Such rules andregulations, with the approval of the President, may containprovisions controlling or regulating the construction ofbuildings or other structures within a reasonable distancefrom along the national roads. Such roads may be temporarilyclosed to any or all classes of traffic by the Director of


58

Public Works and his duly authorized representativeswhenever the condition of the road or the traffic thereonmakes such action necessary or advisable in the publicconvenience and interest, or for a specified period, withthe approval of the Secretary of Public Works andCommunications.” chanroblespublishingcompany

The above provisions of law do not confer legislative power uponthe Director of Public Works and the Secretary of Public Worksand Communications. The authority therein conferred upon themand under which they promulgated the rules and regulations nowcomplained of is not to determine what public policy demands butmerely to carry out the legislative policy laid down by theNational Assembly in said Act, to wit, “to promote safe transitupon and avoid obstructions on, roads and streets designated asnational roads by acts of the National Assembly or by executiveorders of the President of the Philippines” and to close themtemporarily to any or all classes of traffic “whenever thecondition of the road or the traffic makes such action necessaryor advisable in the public convenience and interest.” Thedelegated power, if at all, therefore, is not the determinationof what the law shall be, but merely the ascertainment of thefacts and circumstances upon which the application of said lawis to be predicated. To promulgate rules and regulations on theuse of national roads and to determine when and how long anational road should be closed to traffic, in view of thecondition of the road or the traffic thereon and therequirements of public convenience and interest, is anadministrative function which cannot be directly discharged bythe National Assembly. It must depend on the discretion of someother government official to whom is confided the duty ofdetermining whether the proper occasion exists for executing thelaw. But it cannot be said that the exercise of such discretionis the making of the law. As was said in Locke’s Appeal (72 Pa.491): “To assert that a law is less than a law, because it ismade to depend on a future event or act, is to rob theLegislature of the power to act wisely for the public welfarewhenever a law is passed relating to a state of affairs not yetdeveloped, or to things future and impossible to fully know.”The proper distinction the court said was this: “The Legislature


59

cannot delegate its power to make the law; but it can make a lawto delegate a power to determine some fact or state of thingsupon which the law makes, or intends to make, its own actiondepend. To deny this would be to stop the wheels of government.There are many things upon which wise and useful legislationmust depend which cannot be known to the law-making power, and,must, therefore, be a subject of inquiry and determinationoutside of the halls of legislation.” (Field vs. Clark, 143 U.S. 649, 694; 36 L. Ed. 294.)

In the case of People vs. Rosenthal and Osmeña, G.R. Nos. 46076and 46077, promulgated June 12, 1939, and in PangasinanTransportation vs. The Public Service Commission, G.R. No.47065, promulgated June 26, 1940, this Court had occasion toobserve that the principle of separation of powers has been madeto adapt itself to the complexities of modern governments,giving rise to the adoption, within certain limits, of theprinciple of “subordinate legislation,” not only in the UnitedStates and England but in practically all modern governments.Accordingly, with the growing complexity of modern life, themultiplication of the subjects of governmental regulations, andthe increased difficulty of administering the laws, the rigidityof the theory of separation of governmental powers has, to alarge extent, been relaxed by permitting the delegation ofgreater powers by the legislative and vesting a larger amount ofdiscretion in administrative and executive officials, not onlyin the execution of the laws, but also in the promulgation ofcertain rules and regulations calculated to promote publicinterest. chanroblespublishingcompany

The petitioner further contends that the rules and regulationspromulgated by the respondents pursuant to the provisions ofCommonwealth Act No. 548 constitute an unlawful interferencewith legitimate business or trade and abridge the right topersonal liberty and freedom of locomotion. Commonwealth Act No.548 was passed by the National Assembly in the exercise of theparamount police power of the state. chanroblespublishingcompany

Said Act, by virtue of which the rules and regulationscomplained of were promulgated, aims to promote safe transitupon and avoid obstructions on national roads, in the interest


60

and convenience of the public. In enacting said law, therefore,the National Assembly was prompted by considerations of publicconvenience and welfare. It was inspired by a desire to relievecongestion of traffic. which is, to say the least, a menace topublic safety. Public welfare, then, lies at the bottom of theenactment of said law, and the state in order to promote thegeneral welfare may interfere with personal liberty, withproperty, and with business and occupations. Persons andproperty may be subjected to all kinds of restraints andburdens, in order to secure the general comfort, health, andprosperity of the state (U.S. vs. Gomez Jesus, 31 Phil., 218).To this fundamental aim of our Government the rights of theindividual are subordinated. Liberty is a blessing without whichlife is a misery, but liberty should not be made to prevail overauthority because then society will fall into anarchy. Neithershould authority be made to prevail over liberty because thenthe individual will fall into slavery. The citizen shouldachieve the required balance of liberty and authority in hismind through education and personal discipline, so that theremay be established the resultant equilibrium, which means peaceand order and happiness for all. The moment greater authority isconferred upon the government, logically so much is withdrawnfrom the residuum of liberty which resides in the people. Theparadox lies in the fact that the apparent curtailment ofliberty is precisely the very means of insuring itspreservation. chanroblespublishingcompany

The scope of police power keeps expanding as civilizationadvances. As was said in the case of Dobbins vs. Los Angeles(195 U.S. 223, 238; 49 L. ed. 169), “the right to exercise thepolice power is a continuing one, and a business lawful todaymay in the future, because of the changed situation, the growthof population or other causes, become a menace to the publichealth and welfare, and be required to yield to the publicgood.” And in People vs. Pomar (46 Phil., 440), it was observedthat “advancing civilization is bringing within the police powerof the state today things which were not thought of as beingwithin such power yesterday. The development of civilization,the rapidly increasing population, the growth of public opinion,with an increasing desire on the part of the masses and of the


61

government to look after and care for the interests of theindividuals of the state, have brought within the police powermany questions for regulation which formerly were not soconsidered.” chanroblespublishingcompany

The petitioner finally avers that the rules and regulationscomplained of infringe upon the constitutional precept regardingthe promotion of social justice to insure the well-being andeconomic security of all the people. The promotion of socialjustice, however, is to be achieved not through a mistakensympathy towards any given group. Social justice is “neithercommunism, nor despotism, nor atomism, nor anarchy,” but thehumanization of laws and the equalization of social and economicforces by the State so that justice in its rational andobjectively secular conception may at least be approximated.Social justice means the promotion of the welfare of all thepeople, the adoption by the Government of measures calculated toinsure economic stability of all the competent elements ofsociety, through the maintenance of a proper economic and socialequilibrium in the interrelations of the members of thecommunity, constitutionally, through the adoption of measureslegally justifiable, or extra-constitutionally, through theexercise of powers underlying the existence of all governmentson the time-honored principle of salus populi est suprema lex. chanroblespublishingcompany

Social justice, therefore, must be founded on the recognition ofthe necessity of interdependence among divers and diverse unitsof a society and of the protection that should be equally andevenly extended to all groups as a combined force in our socialand economic life, consistent with the fundamental and paramountobjective of the state of promoting the health, comfort, andquiet of all persons, and of bringing about “the greatest goodto the greatest number.” chanroblespublishingcompany

IN VIEW OF THE FOREGOING, the Writ of Prohibition Prayed for ishereby denied, with costs against the petitioner. So ordered. Avanceña, C.J., Imperial, Diaz and Horrilleno, JJ., concur.


Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007


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ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC OF THE PHILIPPINES, respondent.

D E C I S I O N

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name andsex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleadedthe civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attestingthat he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) andthe civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.


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On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief askedfor.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped ina man’s body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed apetition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:


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Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposesof identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular,Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions ofthis Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registraror consul general concerned. Under the law, therefore, jurisdiction over applicationsfor change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change offirst name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum,the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alterone’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest.


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Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as aresult of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming itcould be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of histrue and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change ofhis first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground ofSex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without ajudicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 inso far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for ajudicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules ofCourt the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in theperformance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visibleto the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24


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ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality andhis family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and endof legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of theCivil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shallbe governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:


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SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentarystamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the factsas they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visuallydone by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common andordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil RegisterLaw was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract


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of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second,there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of theRules of Court,41 among others. These laws underscore the public policy in relation towomen which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, todetermine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name andfor correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Courtrecognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes


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1 Petitioner went for his elementary and high school, as well as his Bachelor ofScience in Statistics and Master of Arts, in the University of the Philippines. He took up Population Studies Program, Master of Arts in Sociology and Doctor ofPhilosophy in Sociology at the University of Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.

2 This consisted of "penectomy [surgical removal of penis] bilateral oschiectomy[or orchiectomy which is the surgical excision of the testes] penile skin inversion vaginoplasty [plastic surgery of the vagina] clitoral hood reconstruction and augmentation mammoplasty [surgical enhancement of the size and shape of the breasts]." Id.

3 On January 23, 2003, January 30, 2003 and February 6, 2003.4 Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.5 Id., pp. 52-53 (citations omitted).6 Docketed as CA-G.R. SP No. 78824.7 Special Sixth Division.8 Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Marina L. Buzon and Aurora Santiago-Lagman concurring. Rollo, pp. 25-33.9 Resolution dated September 14, 2006, id., pp. 45-46.10 An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register Without Need of a Judicial Order, Amendingfor the Purpose Articles 376 and 412 of the Civil Code of the Philippines.11 Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454 SCRA 155.12 Id.13 K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977).14 Under Section 2 (6) of RA 9048, "first name" refers to a name or nickname givento a person which may consist of one or more names in addition to the middle names and last names. Thus, the term "first name" will be used here to refer bothto first name and nickname.15 The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General. – xxx xxx xxx

Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

16 SECTION 3. Who May File the Petition and Where. – Any person having direct and personalinterest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept.

In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping thedocuments to be corrected or changed, the petition may be filed, in person, withthe local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition.

Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates.


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The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once.

17 SECTION 5. Form and Contents of the Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by the law toadminister oaths. The affidavit shall set forth facts necessary to establish themerits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the change sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed;(2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and(3) Other documents which the petitioner or the city or municipal civil registraror the consul general may consider relevant and necessary for the approval of thepetition.

In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record.

18 Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.19 Supra note 11.20 Id.21 In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).22 Lee v. Court of Appeals, 419 Phil. 392 (2001).23 Id.24 Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423 SCRA 420.25 Id.26 Id.27 Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).28 Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p. 238.29 This, of course, should be taken in conjunction with Articles 407 and 412 of the Civil Code which authorizes the recording of acts, events and judicial decrees or the correction or change of errors including those that occur after birth. Nonetheless, in such cases, the entries in the certificates of birth are not be corrected or changed. The decision of the court granting the petition shall be annotated in the certificates of birth and shall form part of the civil register in the Office of the Local Civil Registrar. (Co v. Civil Register of Manila, supra note 24)30 The error pertains to one where the birth attendant writes "male" or "female" but the genitals of the child are that of the opposite sex.31 Moreover, petitioner’s female anatomy is all man-made. The body that he inhabits is a male body in all aspects other than what the physicians have supplied.


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32 Black’s Law Dictionary, 8th edition (2004), p.1406.33 Words and Phrases, volume 39, Permanent Edition, p. 106.34 In re Application for Marriage License for Nash, 2003-Ohio-7221 (No. 2002-T-0149, slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio App. 11 Dist., December 31, 2003),citing Webster’s II New College Dictionary (1999).35 Id.36 Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619.37 Article 1, Family Code.38 Article 2(1), Id.39 These are Articles 130 to 138 of the Labor Code which include nightwork prohibition, facilities for women, prohibition on discrimination and stipulation against marriage, among others.40 These include Article 333 on adultery, Articles 337 to 339 on qualified seduction, simple seduction and acts of lasciviousness with the consent of the offended party and Articles 342 and 343 on forcible and consented abduction, among others.41 Section 3(jj)(4).


Manila

EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed


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ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA.and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs.THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced andhealthful ecology which the petitioners dramatically associate with the twin conceptsof "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause ofaction to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, areall minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests."The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generationas well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.


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and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratioof fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a hostof environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu andthe Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss ofsoil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth'scapacity to process carbon dioxide gases which has led to perplexing and catastrophicclimatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may besubmitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area.


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10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidaysincluded — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident andincontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached asAnnex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State—


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(a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind —the natural law — and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a politicalquestion which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motionis dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained,the respondent Judge further ruled that the granting of the relief prayed for would resultin the impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only representtheir children, but have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor


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General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balancedand healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protectedby the said clause, it is well settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for whichany relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreementor other forestry laws and regulations. Petitioners' proposition to have all the TLAsindiscriminately cancelled without the requisite hearing would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitionersinstituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rulethat the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules ofCourt are present both in the said civil case and in the instant petition, the latterbeing but an incident to the former.


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This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources tothe end that their exploration, development and utilization be equitably accessible to thepresent as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of abalanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seekingto prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notesthat the Complaint is replete with vague assumptions and vague conclusionsbased on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to thesacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions.


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The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may evenbe said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty torefrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.


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Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segmentsof the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relativeto their utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessibleto the different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balanceand protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, itmakes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resourcesshall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.


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Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economicand other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue ofits powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed orgranted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission ofthe defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts tobe true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss onthe ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the lawgrants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements underthe introductory affirmative allegations, as well as the specific averments under thesub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.


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The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrineis no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadeningof judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If


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he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holdersbecause he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purviewof the due process clause; it is only a license or privilege, which can bevalidly withdrawn whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is itproperty or a property right, nor does it create a vested right; nor is ittaxation (37 C.J. 168). Thus, this Court held that the granting of licensedoes not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it canhardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus,they are not deemed contracts within the purview of the due process of lawclause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also,Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its


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very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people toa balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moraland general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

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

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions


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FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided bythis Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failureto act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, thatit cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents,garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes onopen land, streets and thoroughfares; failure to rehabilitate land after strip-miningor open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and otherchemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;


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(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here.

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 granting 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


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back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave 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 broadranging 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.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timbercompanies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They mayalso controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided bythis Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying.


87

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failureto act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, thatit cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents,garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes onopen land, streets and thoroughfares; failure to rehabilitate land after strip-miningor open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and otherchemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;


88

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here.

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 granting 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:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)


89

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 broadranging 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.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timbercompanies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They mayalso controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Footnotes

1 Rollo, 164; 186.

2 Id., 62-65, exclusive of annexes.

3 Under Section 12, Rule 3, Revised Rules of Court.

4 Rollo, 67.

5 Id., 74.

6 Rollo, 70-73.

7 Annex "B" of Petitions; Id., 43-44.

8 Paragraph 7, Petition, 6; Rollo, 20.

9 Webster's Third New International Dictionary, unabridged, 1986, 1508.

10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of 1987, E.O. No. 292.

11 Annex "B" of Petition; Rollo, 43-44.

12 Record of the Constitutional Commission, vol. 4, 913.


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13 For instance, the Preamble and Article XII on the National Economy and Patrimony.

14 The Reorganization Act of the Department of Environment and Natural Resources.

15 E.O. No. 292.

16 Section 1.

17 Section 2.

18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs.Vda. de Yulo, 16 SCRA 251 [1966]; Caseñas vs. Rosales, 19 SCRA 462 [1967];Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA1 [1991].

19 Section 1(q), Rule 16, Revised Rules of Court.

20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayn, supra; Madrona vs. Rosal, supra.

21 39 SCRA 473, 479 [1971].

22 1991 ed., 226-227.

23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991].

24 Rollo, 44.

25 125 SCRA 302, 325 [1983].

26 190 SCRA 673, 684 [1990].

27 Article III, 1987 Constitution.

28 110 Phil. 198, 203 [1960]; footnotes omitted.

29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.

30 22 SCRA 135, 146-147 [1968].

31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil. American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987].


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Manila

EN BANC

G.R. No. 92024 November 9, 1990

CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner, vs.THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION, respondents.

Abraham C. La Vina for petitioner.

Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum Corporation.

GUTIERREZ, JR., J.:

This is a petition to annul and set aside the decision of the Board of Investments (BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the proposed petrochemical plant from Bataan to Batangas and the shift of feedstock for that plant from naphtha only to naphtha and/or liquefied petroleum gas (LPG).

This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T. Garcia v. the Board of Investments", September 7, 1989, where this Court issued a decision, ordering the BOI as follows:

WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of theBataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information,and (3) to set for hearing the petitioner's opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the siteof the BPC petrochemical plant to Batangas province. The hearing shall notexceed a period of ten (10) days from the date fixed by the BOI, notice ofwhich should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held fromday to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. Nocosts. (Rollo, pages 450-451)

However, acting on the petitioner's motion for partial reconsideration asking that werule on the import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of plant site, in the light of the provisions of the Constitution and the Omnibus Investments Code of 1987, this Court on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not provide that the Limaysite should be the only petrochemical zone in the country, nor prohibit the


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establishment of a petrochemical plant elsewhere in the country, that the establishment of a petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803.

Our resolution skirted the issue of whether the investor given the initial inducements and other circumstances surrounding its first choice of plant site may change it simply because it has the final choice on the matter. The Court merely ruled that the petitioner appears to have lost interest in the case by his failure toappear at the hearing that was set by the BOI after receipt of the decision, so he may be deemed to have waived the fruit of the judgment. On this ground, the motion for partial reconsideration was denied.

A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve the basic issue of whether or not the foreign investor has the right of final choice of plant site; that the non-attendance of the petitioner at the hearing was because the decision was not yet final and executory; and that the petitioner had not therefor waived the right to a hearing before the BOI.

In the Court's resolution dated January 17, 1990, we stated:

Does the investor have a "right of final choice" of plant site? Neither under the 1987 Constitution nor in the Omnibus Investments Code is there such a 'right of final choice.' In the first place, the investor's choice is subject to processing and approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments Code). By submitting its application and amended application to the BOI for approval, the investor recognizes the sovereign prerogative of our Government, through the BOI, to approve or disapprove the same after determining whether its proposed project will befeasible, desirable and beneficial to our country. By asking that his opposition to the LPC's amended application be heard by the BOI, the petitioner likewise acknowledges that the BOI, not the investor, has the last word or the "final choice" on the matter.

Secondly, as this case has shown, even a choice that had been approved by the BOI may not be 'final', for supervening circumstances and changes in the conditions of a place may dictate a corresponding change in the choiceof plant site in order that the project will not fail. After all, our country will benefit only when a project succeeds, not when it fails. (Rollo, pp. 538-539)

Nevertheless, the motion for reconsideration of the petitioner was denied.

A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted to grant the motion for reconsideration stating that the hearing set by the BOI was premature as the decision of the Court was not yet final and executory; that as contended by the petitioner the Court must first rule on whether or not the investor has the right of final choice of plant site for if the ruling is in the affirmative, the hearing would be a useless exercise; that in the October 19, 1989 resolution, the Court while upholding validity of the transfer of the plant sitedid not rule on the issue of who has the final choice; that they agree with the observation of the majority that "the investor has no final choice either under the 1987 Constitution or in the Omnibus Investments Code and that it is the BOI who decides for the government" and that the plea of the petitioner should be granted to give him the chance to show the justness of his claim and to enable the BOI to give asecond hard look at the matter.


93

Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17, 1990 in G.R. No. 88637 that the investor has no right of final choice under the 1987 Constitution and the Omnibus Investments Code.

Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain locatedin Lamao, Limay, Bataan were reserved for the Petrochemical Industrial Zone under theadministration, management, and ownership of the Philippine National Oil Company (PNOC).

The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at Bataan. It produces 60% of the national output of naphtha.

Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and applied with BOI for registration as a new domestic producer ofpetrochemicals. Its application specified Bataan as the plant site. One of the terms and conditions for registration of the project was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its petrochemical plant. The petrochemical plant was to be a joint venture with PNOC. BPC was issued a certificate of registration on February 24, 1988 by BOI.

BPC was given pioneer status and accorded fiscal and other incentives by BOI, like: (1) exemption from taxes on raw materials, (2) repatriation of the entire proceeds ofliquidation investments in currency originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of earnings on investments.As additional incentive, the House of Representatives approved a bill introduced by the petitioner eliminating the 48%ad valorem tax on naphtha if and when it is used as raw materials in the petrochemical plant. (G.R. No. 88637, September 7, 1989, pp. 2-3. Rollo, pp. 441-442)

However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989 advising him of BPC's desire to amend the original registration certification of its project by changing the job site from Limay, Bataan, to Batangas. The reason adduced for the transfer was the insurgency and unstable labor situation, and the presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by the Philippine Shell Corporation.

The petitioner vigorously opposed the proposal and no less than President Aquino expressed her preference that the plant be established in Bataan in a conference withthe Taiwanese investors, the Secretary of National Defense and The Chief of Staff of the Armed Forces.

Despite speeches in the Senate and House opposing the Transfer of the project to Batangas, BPC filed on April 11, 1989 its request for approval of the amendments. Itsapplication is as follows: "(l) increasing the investment amount from US $220 millionto US $320 million; (2) increasing the production capacity of its naphtha cracker, polythylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)

Notwithstanding opposition from any quarters and the request of the petitioner addressed to Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments which was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of BPC's petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.)

BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of the Senate asserted that:


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The BOI has taken a public position preferring Bataan over Batangas as thesite of the petrochemical complex, as this would provide a better distribution of industries around the Metro Manila area. ... In advocatingthe choice of Bataan as the project site for the petrochemical complex, the BOI, however, made it clear, and I would like to repeat this that the BOI made it clear in its view that the BOI or the government for that matter could onlyrecomend as to where the project should be located. The BOI recognizes and respect the principle that the final chouce is still with the proponent who would in the final analysis provide the funding or risk capital for the project. (Petition, P. 13; Annex D to the petition)

This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present petition.

Section 1, Article VIII of the 1987 Constitution provides:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actualcontroversies 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.

There is before us an actual controversy whether the petrochemical plant should remain in Bataan or should be transferred to Batangas, and whether its feedstock originally of naphtha only should be changed to naphtha and/or liquefied petroleum gas as the approved amended application of the BPC, now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical admission of the BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor, national interest notwithstanding.

We rule that the Court has a constitutional duty to step into this controversy and determine the paramount issue. We grant the petition.

First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why it organized itself into a corporation bearing the name Bataan. There is available 576 hectares of public land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803. There is no need to buy expensive real estate for the site unlike in the proposed transfer to Batangas. The site is the result of careful study long before any covetous interests intruded into the choice. The site is ideal. It is not unduly constricted and allows for expansion.The respondents have not shown nor reiterated that the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the plant site to Batangas. Certainly, these were taken into account when the firm named itself Bataan Petrochemical Corporation. Moreover, the evidence proves the contrary.

Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of the national output of naphtha which can be used as feedstock for the plant in Bataan. It can provide the feedstock requirement of the plant. On the other hand, thecountry is short of LPG and there is need to import the same for use of the plant in Batangas. The local production thereof by Shell can hardly supply the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from vitally essential projects in order to feed the furnaces of the transferred petrochemical plant.


95

Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem tax. The law was enacted specifically for the petrochemical industry. The policy determination by both Congress and the President is clear. Neither BOI nora foreign investor should disregard or contravene expressed policy by shifting the feedstock from naphtha to LPG.

Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to "regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities." The development of a self-reliant and independent national economy effectively controlledby Filipinos is mandated in Section 19, Article II of the Constitution.

In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national economy in consonance with the principles and objectives of economic nationalism" is the set goal of government.

Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the project from local sources by way of loan which led to the so-called "petroscam scandal", the capital requirements would be greatly minimized if LPC does not have to buy the land for the project and its feedstock shall be limited to naphtha which is certainly more economical, more readily available than LPG, and doesnot have to be imported.

Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great benefit and advantage of the government which shall have a participation in the management of the project instead of a firm which is a huge multinational corporation.

In the light of all the clear advantages manifest in the plant's remaining in Bataan,practically nothing is shown to justify the transfer to Batangas except a near-absolute discretion given by BOI to investors not only to freely choose the site but to transfer it from their own first choice for reasons which remain murky to say the least.

And this brings us to a prime consideration which the Court cannot rightly ignore.

Section 1, Article XII of the Constitution provides that:

xxx xxx xxx

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 whichare competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

xxx xxx xxx

Every provision of the Constitution on the national economy and patrimony is infused with the spirit of national interest. The non-alienation of natural resources, the State's full control over the development and utilization of our scarce resources, agreements with foreigners being based on real contributions to the economic growth and general welfare of the country and the regulation of foreign investments in accordance with national goals and priorities are too explicit not to be noticed and understood.


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A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer of computer chips, where the BOI reasoning may be accorded fuller faith and credit. The petrochemical industry is essential to the national interest. In other ASEAN countries like Indonesia and Malaysia, the government superintends the industry by controlling the upstream or cracker facility.

In this particular BPC venture, not only has the Government given unprecedented favors, among them:

(1) For an initial authorized capital of only P20 million, the Central Bank gave an eligible relending credit or relending facility worth US $50 million and a debt to swap arrangement for US $30 million or a total accommodation of US $80 million which at current exchange rates is around P2080 million.

(2) A major part of the company's capitalization shall not come from foreign sources but from loans, initially a Pl Billion syndicated loan, tobe given by both government banks and a consortium of Philippine private banks or in common parlance, a case of 'guiniguisa sa sariling manteca.'

(3) Tax exemptions and privileges were given as part of its 'preferred pioneer status.'

(4) Loan applications of other Philippine firms will be crowded out of theAsian Development Bank portfolio because of the petrochemical firm's massive loan request. (Taken from the proceedings before the Senate Blue Ribbon Committee).

but through its regulatory agency, the BOI, it surrenders even the power to make a company abide by its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice which is undoubtedly in the best interests of the Filipino people.

The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the investor all other circumstances to the contrary notwithstanding. No cogent advantage to the government has been shown by this transfer. This is a repudiation of the independent policy of the government expressed in numerous laws and the Constitution to run its own affairs the way it deems best for the national interest.

One can but remember the words of a great Filipino leader who in part said he would not mind having a government run like hell by Filipinos than one subservient to foreign dictation. In this case, it is not even a foreign government but an ordinary investor whom the BOI allows to dictate what we shall do with our heritage.

WHEREFORE, the petition is hereby granted. The decision of the respondent Board of Investments approving the amendment of the certificate of registration of the Luzon Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET ASIDE as NULL and VOID. The original certificate of registration of BPC' (now LPC) of February 24, 1988 with Bataan as theplant site and naphtha as the feedstock is, therefore, ordered maintained.

SO ORDERED.

Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur.


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Fernan, C.J., Paras, JJ., took no part.

Feliciano, J., is on leave.

Separate Opinions

GRIÑO-AQUINO, J., dissenting Opinion:

This is the petitioner's second petition for certiorari and prohibition with applicationfor a temporary restraining order or preliminary injunction against the respondents Board of Investments (BOI), Department of Trade and Industry (DTI), the Luzon Petrochemical Corporation (LPC), formerly Bataan Petrochemical Corporation, and Pilipinas Shell Corporation (SHELL) on the transfer of the LPC petrochemical plant site from Bataan to Batangas. The first case was docketed in this Court as G.R. No. 88637 and was decided on September 7, 1989. Consistent with my opinion in the first case, I vote once more to deny the petition.

The petitioner filed this second petition supposedly "upon the authority and strength" of this Court's statement in its Resolution of January 9, 1990 in G.R. No. 88637 that the foreign investor (LPC) does not have a right of final choice of plant site because its choice is subject to approval or disapproval by the BOI (p. 3, Rollo). Ergo, the BOI has the "final choice."

Petitioner contends that since the BOI had earlier approved Bataan as the plant site of the LPG petrochemical complex, and of "naphtha only" as the feedstock, that approval was "final" and may not be changed. Hence, the BOI allegedly abused its discretion: (1) in approving the transfer of the LPC's plant site from Bataan to Batangas (in spite of the BOI's initial preference for Bataan) "upon the false and unlawful thesis that the foreign investor has the right of final choice by plant site" (p. 13, Rollo), and (2) in allowing the LPC to shift feedstock from naphtha only, to naphtha and/or LPG, despite the disadvantages of using LPG. Petitioner praysthe Court to annul the BOI's action and prohibit LPC from transferring its plant siteto Batangas and shifting feedstock to naphtha and/ or LPG (p. 22, Rollo).

The petition is not well-taken. There is no provision in the 1987 Investments Code prohibiting the amendment of the investor's application for registration of its project, such as, in this case, its plant site, the feedstock to be used, and the capitalization of the project.

Neither does the law prohibit the BOI from approving the amended application.

Since the investor may amend its application and the BOI may approve or disapprove the amendments, when may the BOI be deemed to have made a "final choice" regarding those aspects of the project which have been changed?

Only the BOI or the Chief Executive is competent to answer that question, for the matter of choosing an appropriate site for the investor's project is a political and economic decision which, under our system of separation of powers, only the executivebranch, as implementor of policy formulated by the legislature (in this case, the policy of encouraging and inviting foreign investments into our country), is empowered to make. It is not for this Court to determine what is, or should be, the BOI's "final choice" of plant site and feedstock, for, as we said in our decision in G.R. No. 88637:


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This Court ... does not possess the necessary technology and scientific expertise to detail e whether the transfer of the proposed BPC (now LPC) petrochemical complex from Bataan to Batangas and the change of fuel from 'naphtha only to naphtha and/or LPG' will be best for the project and for our country. This Court is not about to delve into the economics and politics of this case. It is concerned simply with the alleged violation of due process and the alleged extra limitation of power and discretion onthe part of the public respondents in approving the transfer of the project to Batangas without giving due notice and an opportunity to be heard to the vocal opponents of that move." (pp. 445-446, Rollo of G.R. No. 88637.)

Although we did say in our decision in G.R. No. 88637 that the BOI, not the foreign investor, has the right of "final choice" of plant site for the LPC project, the Court would be overstepping the bounds of its jurisdiction were it to usurp the prerogative of the BOI to make that choice or change it.

The petitioner's contention that the BOI abused its discretion in approving the transfer of the LPC plant site to Batangas because the BOI, in effect, yielded to theinvestor's choice, is not well taken. The record shows that the BOI approved the transfer because "the BOI recognizes the justification given by the proponent of the project (p. 30, Rollo). The fact that the petitioner disagrees with the BOI's decision does not make it wrong. The petitioner's recourse against the BOI's action is by an appeal to the President (Sec. 36, 1987 Investments Code), not to this Court.

This Court, in the exercise of its judicial power, may review and annul executive as well as legislative actions when they clash with the Constitution or with existing laws, or when any branch or instrumentality of the Government has acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution) but the Court may not do more than that. It may not make the decisions that the executive should have made nor pass the laws that the legislature should have passed. Not even the much publicized "petroscam" involving the financial arrangements (not the issue in this case) for the LPC project would justify the intervention of this court in a matter that pertains to the exclusive domain of the executive department. The court does not have a panacea for all the ills that afflictour country nor a solution for every problem that besets it.

Did the BOI gravely abuse its discretion in approving the LPC's amended application for registration of its petrochemical project to warrant the intervention of this Court? Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos vs. Prov. of Tarlac, 67 Phil. 480; Alafriz vs. Nable, 70 Phil. 278).

In light of the LPC's justifications for the transfer of its project site and the shift from one kind of feedstock to two, we are not prepared to hold that the BOI's decision to approve the changes was the product of a capricious and arbitrary exercise of judgment on its part, despite the seemingly impressive arguments of the petitioner showing the advantages of establishing the petrochemical plant in Bataan and of using naphtha only as feedstock. We are not prepared to substitute the judgment of the BOI on this matter with one crafted by this Court.

With regard to the scandalously liberal financial accommodations that local banks have allegedly agreed to grant to the LPC (the so-called "petroscam") to enable it toraise a major part of its capital requirements from local sources (hence, a betrayal of the people's expectation that foreign investors will bring in foreign exchange to finance their projects in this country) it is significant that the petitioner has notled an outcry for the disapproval and cancellation of the project on this score.


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Apparently, the petitioner is not seriously disturbed by the moral implications of the "scam" provided the petrochemical plant is set up in Bataan.

The decision of the BOI to allow the transfer of the LPC petrochemical project to Batangas and shift feedstock from naphtha only to naphtha and/or LPG, may appear to the petitioner to be extremely unwise and inadvisable, but the Court may not, for that reason annul the BOI's action or prohibit it from acting on a matter that lies within its particular sphere of competence, for the Court is not a judge of the wisdom and soundness of the actions of the two other co-equal branches of the Government, but only of their legality and constitutionality.

WHEREFORE, I vote to deny the petition for certiorari and prohibition for lack of merit.

Melencio-Herrera, Narvasa and Regalado, JJ., concur.

MELENCIO-HERRERA, J., dissenting:

Consistent with my dissent in G.R. No. 88637, the first petition, I concur in the dissent herein of Mme. Justice Aquino and merely wish to add that in its Decision, the majority has actually imposed its own views on matters falling within the competence of a policy-making body of the Government. It decided upon the wisdom of the transfer of the site of the proposed project (pp. 8-9); the reasonableness of thefeedstock to be used (pp. 8-9); the undesirability of the capitalization aspect of the project (p. 10), and injected its own concept of the national interest as regardsthe establishment of a basic industry of strategic importance to the country (p. 13).

It is true that the judicial power embodied in Article VIII of the 1987 Constitution speaks of the duty of Courts of justice to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. By no means, however, does it vest in the Courts the power to enter the realm of policy considerations under the guise of the commission of grave abuse of discretion.

But this is exactly what the majority Decision has resulted in. It has made a sweeping policy determination and has unwittingly transformed itself into what might be termed a "government by the Judiciary," something never intended by the framers ofthe Constitution when they provided for separation of powers among the three co-equalbranches of government and excluded the Judiciary from policy-making.


Manila

EN BANC

G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due


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course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner andthirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his votefor petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which wereallegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In sodoing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reasonfor according a different treatment to the "equal access" provision. Like the rest ofthe policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr.


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successfully brought forth an amendment that changed the word "broaden" to the phrase"ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many officesas are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office maybe subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel aCertificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the Statetakes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never


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exempt the State from the conduct of a mandated electoral exercise. At the same time,remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot – the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockeryeven if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, VotersInformation Sheet and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated counting and canvassingof votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, nomatter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election rules and regulations the formulations ofwhich are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the Statecould exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination.18 The determination of bona


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fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper applicationin the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not directthe Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yetthis Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended anydocument to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated inSection 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report itsfindings to this Court with deliberate dispatch.

SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes* On Official Leave.1 Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.


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2 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474.3 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila Prince Hotel v. GSIS, supra note 2 at 436.4 Kilosbayan, Inc. v. Morato, supra note 2.5 "A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement. The inquiry demands a micro-analysis and the context of the provision in question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2.6 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.7 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.8 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815.9 Section 69. Nuisance Candidates. — The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate.10 SEC. 6. Motu Proprio Cases. — The Commission may, at any time before the election, motu proprio refuse to give due course to or cancel a certificate of candidacy ofany candidate for the positions of President, Vice-President, Senator and Party-list:I. The grounds:a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and legal qualifications of the office to which they aspire tobe elected;b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election process in mockery or disrepute;c. Candidates whose certificate of candidacy could cause confusion among the voters by the similarity of names and surnames with other candidates; andd. Candidates who have no bona fide intention to run for the office for which thecertificate of candidacy had been filed or acts that clearly demonstrate the lackof such bona fide intention, such as:d.1 Candidates who do not belong to or are not nominated by any registered political party of national constituency;d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president, respectively, nor senatorial candidates;d.3 Candidates who do not have a platform of government and are not capable of waging a nationwide campaign.11 Jenness v. Fortson, 403 U.S. 431 (1971).12 Rollo, pp. 469.13 See Section 178, Omnibus Election Code, as amended.14 See Section 239, Omnibus Election Code, as amended.


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15 See Article XI, Omnibus Election Code, as amended.16 See Section 2(1), Article IX, Constitution.17 Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967, 19 SCRA 911.18 See Section 9, Article IX, Constitution.

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