IBP Journal Volume 35 No. 1 2010

The IBP JournalI N T E G R A T E D B A R O F T H E P H I L I P P I N E S

Board of Editors

ROAN I. LIBARIOS

Editor-in-Chief

EDUARDO A. LABITAG

Managing Editor

DANILO L. CONCEPCION

FLORIN T. HILBAY

JAIME G. HOFILEÑA

MARIO C.V. JALANDONI

CONCEPCION L. JARDELEZA

NASSER A. MAROHOMSALIC

OSCAR G. RARO

CARMELO V. SISON

AMADO D. VALDEZ

OLIVER B. SAN ANTONIO

VINCENT PEPITO F. YAMBAO, JR.Associate Editors

VICMUND Q. CAMACHO

VIVIAN C. CAPIZNON EUMIR C. LAMBINO

Staff Layout/Design

VOLUME 35 NUMBER 1 (AUGUST 2010)

CONTENTS

Philippine Treaty Law and PracticeJ. Eduardo Malaya and Maria Antonina Mendoza-Oblena ....................... 1

An Essay on the Incorporation Clause of theConstitution as a Juridical EnigmaMerlin M. Magallona .................................................................................... 18

Defining Regulatory Spaces: Precautionary Principles,Regulatory Diversity, and the SPS Treaty of the WTOAgreementMarvic M.V.F. Leonen ................................................................................... 30

Revised Code of Corporate Governance:A Reactionary ApproachCesar L. Villanueva ....................................................................................... 40

Symbolic Speech in the WorkplaceComments on NUWHRAIN v. Court of AppealsFlorin Ternal Hilbay...................................................................................... 63

The Legal Regime Governingthe Export of Filipino WorkersPatricia R.P. Salvador Daway ..................................................................... 81

Global Climate Change and Recent Developmentsin Philippine Environmental LawMyrna S. Feliciano ........................................................................................ 93

An Environmental Writ:The Philippines’ AvatarFrancis N. Tolentino .....................................................................................117

Revisiting the Philippine Educational Systemfor Everyone’s ReflectionRustico T. De Belen ......................................................................................140

The IBP JOURNAL (ISSN 0118-9247) is an official publicationof the Integrated Bar of the Philippines

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SYNOPSIS

(The Articles in this Issue)

For this issue, the IBP Journal presents an eclectic selection of articles that

presents both traditional and non-traditional analyses of important legal and

constitutional issues.

In “Philippine Treaty Law and Practice,” J. Eduardo Malaya and Maria

Antonina Mendoza-Oblena trace the Philippine’s foreign policy objectives and

expound on the various legal instrumentalities and processes by which the country

enters into international agreements and obligations.

Merlin M. Magallona (“An Essay on the Incorporation Clause of the Constitution asJuridical Enigma”) discusses the Incorporation Clause “enigma” under the Philippine

Constitution, stating that the purpose of the Clause as shown by jurisprudence is to

make international law principles binding on the Philippines. In the same way, however,

“this function is needless because even without the Incorporation Clause under the

doctrine of incorporation, the Philippines would still be bound by these principles.”

Magallona then goes on to discuss hierarchies of norms under international law,

differentiating between jus cogens norms, erga omnes obligations, and obligations under

the UN Charter.

Marvic M.V.F. Leonen’s “Defining Regulatory Spaces: Precautionary Principles,Regulatory Diversity and the SPS Treaty of the WTO Agreement” analyzes the meaning and

elements of the Precautionary Principle and its application to international law

instruments such as the World Trade Organization Agreement. In various decided

cases, Leonen credits the WTO Appellate Body for contributing “to the clarification

of the precautionary principle.”

Cesar L. Villanueva in “Revised Code of Corporate Governance: A ReactionaryApproach” analyzes the Revised Code of Corporate Governance vis-à-vis the older

SEC Code of Corporate Governance and laments that “what stand out from the

provisions of the Revised CG Code are not what new cutting-edge concepts were

introduced, but rather what seminal provisions have been taken out from theprovisions of the original SEC Code.” Villanueva critiques how the new Code has

seemingly abandoned the Stakeholder Theory which was established by the older Code,

though the principle can be seen in other sets of rules of other agencies.

In “Symbolic Speech In The Workplace: Comments on NUWHRAIN v. Court of Appeals,”Florin Ternal Hilbay traces the modern legal history of free speech and the

relationship between labor and capital, and examines the Supreme Court’s decision

in NUWRAIN v. Court of Appeals, which involved a labor dispute between a hotelchain and its workers. He ends by posing a question: How should the courts draw

the line between protected and unprotected speech in the workplace in the context

of a contentious collective bargaining negotiation?

Patricia R.P. Salvador Daway in “The Legal Regime Governing The Export ofFilipino Workers” outlines the background of the labor situation in the country, provides

statistics on Overseas Filipino Workers (OFWs), and explains why millions of Filipinos

seek work abroad. She enumerates the statues and agencies relating to labor and

concludes that “the problems facing OFWs are both in the national and international

levels.”

In their respective articles, Myrna S. Feliciano (“Global Climate Change andRecent Developments in Philippine Environmental Law”) and Francis N. Tolentino (“AnEnvironmental Writ: The Philippines’ Avatar”) both discuss continuing challenges on the

environment and the legal responses to environmental abuse and degradation.

Feliciano details the numerous laws and government agencies involved in

environmental protection. The judiciary has also not been left behind in crafting

initiatives and regulations on the issue, but Feliciano concludes, “While the Philippines

acts fast when it comes to signing international conventions and enacting laws to

protect the environment, sadly, these measures are seldom enforced.”

Tolentino meanwhile focuses on the role of the judiciary in addressing

environmental concerns. He refers to a Writ of Gaia which “will be a purely Filipino

invention.” The writ He states, “The promise of a Writ of Gaia and the adoption of

the doctrine of continuing mandamus in the Philippine legal arena represent efforts

to turn soft law into hard.”

Lastly, in “Revisiting the Philippine Educational System for Everyone’s Reflection,”Rustico de Belen makes a presentation of education principles and trends from

Filipino pre-history to the present. He stressed the need for education reform based

on strong legal foundations.

1VOLUME 35 NUMBER 1 (AUGUST 2010)

DEFINING REGULATORY SPACES:

Precautionary Principles, Regulatory Diversity

and the SPS Treaty of the WTO Agreement

Philippine Treaty Law

and Practice

J. Eduardo Malayaand Maria Antonina Mendoza-Oblena*

In the book “The Idea of Law,” Professor Dennis Lloyd observed, “Every rule ofinternational law imposes a legal fetter on national states in the international sphere,for this is the very sense and meaning of an international legal order.”1

In a globalized world, nation-states are aptly described as independent withintheir respective borders but interdependent outside. The benefits of interaction andcooperation with other countries are generally beyond dispute. In the field ofeconomics, for instance, a party raises his welfare much faster if he specializes inmaking a product and trades with another who makes another product than if theformer makes those two products himself, as expounded by the principle ofcomparative advantage.

The Philippines has interacted and cooperated with neighboring countries andthe rest of the international community through the decades, and as of this writing,has concluded some 1,660 agreements with them since 1946.

Immense opportunities are made possible by cooperation and exchanges withthe international community, through the medium of agreements and otherarrangements. For instance, entrepreneurs, exporters and other businesspersonscan benefit from accords on trade access, investment promotion and protection, andavoidance of double taxation. Farmers, fisher folks and others may avail of foreigntechnical and development assistance. Students and the youth can tap educationaland cultural exchange programs with other countries and international organizations.

From a larger perspective, a well-informed understanding of Philippine foreignpolicy and the country’s rights, duties and commitments is best derived from ananalysis of the treaties and other international agreements it has concluded.

* J. Eduardo Malaya is Assistant Secretary for Legal Affairs of the Philippine Department of Foreign Affairs (DFA)and concurrently DFA Spokesman. He was the country’s Alternate Representative to the High-Level LegalExperts’ Group on matters arising from the ASEAN Charter (HLEG) in 2008-2009, and served as an adviserto the Philippine government panel for the peace negotiations with the Moro Islamic Liberation Front in 2009-2010. A career foreign service officer with the rank of Chief of Mission Class II, he has economics (cum laude)and law degrees from the University of the Philippines. Maria Antonina Mendoza-Oblena is DFA Director forTreaties, and in 2009-2010, was a member of the Philippine HLEG delegation. A career foreign service officer,she has Bachelor of Music degrees in piano and music education (cum laude) from the University of SantoTomas and a Juris Doctor from the Ateneo de Manila University.

This article is adapted from the introductory chapter in the book “Philippine Treaties Index, 1946 - 2010,”published by the Foreign Service Institute in June 2010.

1 Dennis Lloyd, The Idea of Law (Reading, UK: Cox and Wyman Ltd, 1964), p 190.

J. Eduardo Malaya and Maria Antonina Mendoza-Oblena

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I . Philippine foreign policy objectives

Philippine foreign policy is oriented towards the further enhancement ofnational security, the pursuit of economic diplomacy and the extension of full consularservices to Filipino nationals wherever they may be. These three strands are calledthe “Three Pillars of Philippine Foreign Policy.”

From February 2001 to the first half of 2010, during the presidency of GloriaMacapagal-Arroyo, the Philippines concluded some 393 agreements, notably elevenon the promotion and protection of overseas Filipino workers, ten tourism promotionagreements, nine investment promotion accords, eight health cooperation accords,six environmental conservation and protection agreements, and five on social securitybenefits. This record reflects the priority given these areas by the administration,especially on the welfare of overseas Filipinos, economic promotion and environmentprotection.

Among the agreements are a number of free trade agreements entered by thePhilippines and its ASEAN partners with the economies of major neighboringcountries, the Philippine-Japan Economic Partnership Agreement, the StockholmConvention on Persistent Organic Pollutants, arrangements for the headquarters ofthe ASEAN Centre for Biodiversity and the Worldfish Centre in the Philippines,and the accessions to the Convention against Torture and the Protocol Additionalto the Geneva Conventions of 12 August 1949.

Similar foreign policy priorities will most likely be pursued by the administrationof President Benigno S. Aquino III, with added emphasis on human rights,international humanitarian law and anti-corruption.

This study is a modest attempt at documenting the treaty law and practice atthe Office of Legal Affairs (OLA) of the Philippine Department of Foreign Affairs(DFA). As will be discussed below, OLA is the official repository of the treatiesentered into by the country. The office also provides legal guidance and support tothe DFA and other departments and agencies of the Philippine government in thenegotiation, signing and ratification of international agreements.

This paper will examine the provisions of the Constitution which have relevanceto treaty-making, and discuss the definition and coverage of the term “treaty,” thecapacity of states to enter into treaties, both at the international and domestic lawlevels, and the categories of international agreements, also in the international anddomestic law levels.

These are followed by an analysis of the distinction between a Memorandumof Agreement (MOA) and a Memorandum of Understanding (MOU) in theinternational law sphere, and that between a treaty and an executive agreement inthe domestic law sphere.

Philippine Treaty Law and Practice

VOLUME 35 NUMBER 1 (AUGUST 2010) 3

The study concludes with an examination of the steps in the treaty-makingprocess, from the negotiation phase to a signed agreement’s entry into force.

II. Parameters in the formulation and conduct of foreign

policy

The substantive content of Philippine foreign policy is anchored on theConstitution, specifically the precepts that in the country’s relations with other statesthe paramount consideration shall be national sovereignty, territorial integrity,national interest, and the right to self-determination, and that the country adheresto the policy of peace, equality, justice, freedom, cooperation, and amity with allnations. Thus:

Article II, Section 2. The Philippines renounces was an instrument ofnational policy, adopts the generally accepted principles of internationallaw as part of the law of the land and adheres to the policy of peace,equality, justice, freedom, cooperation, and amity with all nations.

Article II, Section 7. The State shall pursue an independent foreign policy.In its relations with other states the paramount consideration shall benational sovereignty, territorial integrity, national interest, and the rightto self-determination.

The above is supplemented by the foreign policy priorities of the President ofthe Philippines, as the chief architect of foreign policy, and his Secretary of ForeignAffairs.

On the other hand, the procedural dimension of foreign policy-making, whichis the ambit of Philippine treaty law and practice, is based on the following:

(a) The Philippine Constitution, specially Article VII, Section 21 which states, “Notreaty or international agreement shall be valid and effective unlessconcurred in by at least two-thirds of all the Members of the Senate;

(b) The ruling of the Supreme Court of the Philippines in Commissioner ofCustoms vs. Eastern Sea Trading,2 which made a distinction between treatiesand executive agreements, the latter requiring the ratification by the President3 inorder to take effect, and related jurisprudence; and

(c) Executive Order No. 459, series of 1997, which sets the guidelines inthe negotiation, conclusion and ratification of international agreements.

2 G.R. No. L-14279 (1961).

3 Executive Order No. 459, s. 1997, Section 7.


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III. Definition and Coverage of Treaties

The term “treaty” is used in this study as defined in the Vienna Convention onthe Law of Treaties,4 Article 2 (1) of which states that:

“treaty” means an international agreement concluded between States inwritten form and governed by international law, whether embodied in asingle instrument or in two or more related instruments and whateverits particular designation.

Under this definition, a treaty has the following elements:5

1. An international agreement. To be a treaty, an agreementhas to have an international character.

2. Concluded between states. A treaty is between states,governments or their agencies or instrumentalities actingon behalf of states. A treaty may be concluded by headsof states or governments, their ministries or other stateagencies.6 An agreement or contract between internationalor multinational companies, or between a state and sucha company, is not a treaty. This is true, even when suchan agreement provides that it shall be interpreted in wholeor in part by reference to rules of international law.7

3. In written form.4. Governed by international law. This refers to the element

of intent to create obligations under international law.If there is no such intention, the instrument is not atreaty.8

5. Whether embodied in a single instrument or in two ormore related instruments. Treaties can also be drawnup in less formal ways, such as through the exchange ofnotes.

The Vienna Convention definition delimited treaties as between states.9

However, states may also enter into treaties with international organizations. Thelatter class of agreements are governed by another set of rules, the Vienna Conventionon the Law of Treaties between States and International Organizations or betweenInternational Organizations.10

4 Adopted on 22 May 1969 and entered into force on 27 January 1980.

5 Anthony Aust, Modern Treaty Law and Practice (2000), pp. 14-25.

6 Ibid., p. 16.

7 Ibid., p. 15.

8 Ibid., p. 17.

9 Ibid., p. 14.

10 Done in Vienna, Austria on 21 March 1986; not yet in force.



IV. Capacity to enter into treaties

“Every State possesses capacity to conclude treaties,” according to Article 6 ofthe Vienna Convention on the Law of Treaties.

In the Philippines, the President, as Chief Executive and head of state, has thepower to conduct foreign relations. As chief architect of Philippine foreign policy, hehas the power to make treaties. As described by Senator Arturo Tolentino,

The President is the sole spokesman of the Government in foreign relations...He is the only official of this Government whose positions and views in our dealingswith other countries are taken by other Governments as those of the PhilippineGovernment. His is the only voice which other Governments will take as expressingthe official stand of our Government. In short, he is the official channel ofcommunication to which other Governments will listen to ascertain the position andviews of the Philippine Government in our relations with them.11

V. Nature of international agreements12

In examining an international agreement, it is essential to identify the natureof the agreement in international law and domestic law. Under international law, theagreement may be in the form of a treaty or the less formal Memorandum ofAgreement, which creates legally-binding rights and obligations on the parties, or aMemorandum of Understanding, which is a non-legally binding instrument.13

Additionally, the agreement has to be examined whether it should be treatedas a treaty in the context of Article VII, Section 21 of the Philippine Constitution,or an executive agreement, which only requires presidential ratification in order toenter in force and effect.

A. In International Law

Under international law, the negotiation, conclusion and ratification of treatiesis governed by the Vienna Convention on the Law of Treaties and customaryinternational law.

11 Arturo Tolentino, The President and the Batasan on Foreign Affairs, in The Powers of the Philippine President, as quotedby J. Eduardo Malaya, Conflict and Cooperation in the Crafting and Conduct of Foreign Policy, Philippine Law Journal,Vol. 84, p. 561.

12 OLA Office Order No. 02-07 - Guidelines in Reviewing International Agreements, in J. Eduardo Malaya, ed., Manualon Treaties Review (DFA-OLA, January 2008), p. 1.

13 Aust, p. 18.


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Treaty/Memorandum of Agreement vs. Memorandum of

Understanding. In international law practice, the treaty/Memorandum ofAgreement (MOA) format is used when the agreement describes the specificresponsibilities of, or actions to be undertaken by the parties with the view to theaccomplishment of their goals,14 and the availability of a recourse to enforcementaction in case of non-compliance with its terms.

In contrast, the Memorandum of Understanding (MOU) format is used whenthe participants have agreed on general principles of cooperation, and though theparties are bound by its terms, pursuant to the principle of pacta sunt servanda, theunderstanding is not intended to be legally enforceable by one participant againstthe other. An MOU may list the obligations of both sides, but performance andcompliance are on a best-effort basis.

Rather than creating international legal rights and obligations, the intentionof the participants is to record mutual understandings as to how they will conductthemselves. Thus, MOUs often contain broad goals and plans shared by theparticipants. Its terms are on a best-effort basis and are not legally enforceable.

The MOU format is useful in certain situations. It is preferred for reasons ofconfidentiality and ease and convenience in concluding them. It is often used whendealing with sensitive defense and national security matters or to protect delicatecommercial information, such as those accompanying air services agreements.15 Sincethese are non-legally binding, there is also no international requirement to publishthem.

MOUs are usually effective upon their signature.

In Philippine treaty practice, MOUs in the nature of declarations, implementingarrangements, letter of intent, joint communiqué and joint statement do not requirepresidential ratification to become effective. Nonetheless, MOUs whose texts denotean intent to be legally binding will require presidential ratification.16

The title of the instrument does not, in itself, determine the nature or statusof the instrument. What is determinative is whether the negotiating states intendedthe instrument to be legally-binding or not. It is only by examining the terms of aninstrument can one determine its status.17

The respective terminologies in treaty/MOA and MOU are different, notablythe use of the word ”agree” in treaty/MOA and “decide, accept, or approve” inMOU. “Parties” in treaty/MOA are referred to as “Participants” in MOU.

14 OLA Memorandum dated 17 December 2007 - Treaty MOA and MOU Terminologies, in Malaya, Manual onTreaties Review, pp. 11-12.

15 Aust, pp. 34-39.

16 Ibid.

17 Aust, p. 20.



Negotiators and drafters of agreements should carefully choose the wordsthey use, to properly indicate the intent to conclude a legally binding or non-legallybinding instrument. OLA Office Circular dated 17 December 2007 lists these differingterminologies.

President Gloria Macapagal Arroyo expressed a preference for MOA overMOU18 as the agreed terms can clearly be relied upon. However, it need not be soat all times, particularly if the Philippines is not the one proposing the instrument,and also when it is necessary to maintain some flexibility in its implementation.

Exchange of Notes. According to the Vienna Convention, a treaty may be“embodied in a single instrument or in two or more related instruments”19 Thisphrase recognizes that the classic form for a treaty – a single instrument – has beenjoined by those drawn in less formal ways, such as exchanges of notes.

In an exchange of diplomatic notes, a country transmits to another country aninitiating Note which contains the elements of a proposed agreement. If the proposedterms are acceptable, the recipient country may transmit a reply Note conveying itsconsent to be bound by those terms. The agreement takes effect on the date of thereply Note.

Many exchanges of notes are in the nature of MOU, but these could alsoconstitute legally-binding treaty/MOA depending upon their substance. Due carehas to be exercised.

B. In Philippine Domestic Law

The 1987 Constitution, Executive Order No. 459, s. 1997, and jurisprudencegovern the subject in domestic law.

The distinction drawn between a treaty and an executive agreement is based on the casesUSAFFE Veterans v. Treasurer of the Philippines, et al20 (1959), and Commissionerof Customs vs. Eastern Sea Trading (1961), where the Supreme Court made a distinctionbetween a “treaty” as referred to in the Constitution and another class of agreements called “executiveagreement.” According to the Court,

International agreements involving political issues or changes of national policy and thoseinvolving international arrangements of a permanent character usually take the form oftreaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more orless temporary nature usually take the form of executive agreements.

18 Ibid.

19 Vienna Convention on the Law of Treaties, Article 2 (1).

20 105 Phil. 1030 (1959).


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The above ruling has been observed through the years, and the practice becamecodified when Executive Order No. 459, series of 1997 was issued by PresidentFidel V. Ramos.21

According to the executive order, the Office of Legal Affairs, on behalf of theDFA, determines whether an agreement is an executive agreement or treaty. Thus:

Section 9. The Department of Foreign Affairs shall determine whether an agreement is anexecutive agreement or a treaty.

As noted by Senator Miriam Defensor-Santiago, Chairperson of the SenateCommittee on Foreign Relations,

“… it is the foreign affairs department which determines whether an agreement is an executiveagreement on one hand; or a treaty on the other hand. This distinction is important, becausewhile it is claimed that an executive agreement needs only ratification by the President, atreaty needs concurrence by the Senate. This distinction drawn between an executive agreementand a treaty is based on the 1961 case of Commissioner of Customs v. Eastern Sea Trading.22

Treaty vs. Executive Agreement. Executive Order No. 459 defines“treaties” as “international agreements entered into by the Philippines which requirelegislative concurrence after executive ratification,” while “executive agreements”are “similar to treaties except that they do not require legislative concurrence.”23

As noted in the Eastern Sea Trading ruling, a treaty would involve political issuesor changes of national policy, or arrangements of permanent character.24 An agreementwhich would conflict with existing laws and thus require amendment of said lawsshould be considered as a treaty requiring Senate concurrence. Those which may bein conflict with established national policy and require a change of said policy shalllikewise be deemed as requiring Senate concurrence. Agreements which would requirethe enactment of a law for its implementation will also require Senate concurrence.

Examples of agreements treated as treaties are those that provide taxexemptions, because only Congress may grant such exemption25; grant privilegesand immunities to individuals or international organizations, except diplomaticimmunities and privileges for United Nations agencies and other internationalorganizations which are by now the norm; provide direct allocation of funds, as thisprerogative is exclusively lodged with Congress; and those that criminalize certainconduct, as only the legislature may pass a penal legislation.

21 See also Gonzalez v Hechanova, 9 SCRA 243; World Health Organization v. Hon. Aquino, 48 SCRA 242; andJoaquin Bernas, S.J., Foreign Relations in Constitutional Law (1995), pp 112-115.

22 Senator Miriam Defensor-Santiago, Procedure for Senate Concurrence to Treaties (2007), p. 2.

23 Executive Order No. 459, section 2 (b) and (c).

24 Commissioner of Customs v. Eastern Sea Trading (1961).

25 Tax exemptions may be made only under the authority of Congress in accordance with Article VI, Section 28(2) of the Constitution and the Customs and Tariffs Code.



To be likewise treated as requiring Senate concurrence are those which maycontravene established constitutional or national policies, such as the no impositionof the death penalty, no establishment of foreign military bases,26 no resort to third-party tribunal in case of disputes, policy of freedom from nuclear weapons inPhilippine territory,27 the One-China policy, and the archipelagic doctrine with respectto the country’s maritime territory.28

On the other hand, executive agreements are those that which “embodyadjustment of details carrying out well-established national policies and tradition,involving arrangements of a more or less temporary nature.”29

The distinction between treaties and executive agreements has no bearing inthe international law sphere. Both are covered by the term “treaty” as defined in theVienna Convention and thus equally binding, unless the instrument is in the natureof a MOU, as noted earlier.

The following categories of agreements have been treated as executiveagreements: air services agreement, cultural agreement, defense cooperationagreement, mutual logistics support agreement, scientific and technologicalcooperation agreement, economic cooperation agreement, agreement on gainfulemployment of spouses of members of diplomatic and consular missions; tourismcooperation agreement, investment promotion and protection agreement, laborpromotion and protection agreement, maritime agreement, waiver of visarequirement agreement, and trade cooperation/facilitation agreements, such as thoseamong ASEAN countries.30

In contrast, the following have been treated as treaties which requirepresidential ratification and Senate concurrence:

a) Status of forces agreement/Visiting forces agreement31

b) Comprehensive free trade agreement/economic partnershipagreement, which go beyond what the President is allowed toundertake unilaterally under Article VI, Section 28(2) of theConstitution and the Customs and Tariff Code

c) Agreement on the avoidance of double taxation, since tax exemptionscan be made only under the authority of Congress32

26 Section 25, Article XVIII of the Constitution.

27 Section 8, Article II of the Constitution.

28 OLA Office Order No. 02-07, in Malaya, ed., Manual on Treaties Review, p. 2.

29 See Commissioner of Customs ruling. In U.S. jurisprudence, executive agreements fall under two categories: (1)agreements made purely as executive acts affecting external relations with or without legislative authorization,which may be called “presidential agreement,” and (2) agreements entered into pursuance of acts of Congress,which are designated as “Congressional-Executive Agreement” (Hackworth, International Law, Vol. 1, p. 380).

30 OLA Office Order No. 1 – 2007 dated 22 May 2007, in Malaya, Manual on Treaties Review), p. 13.

31 Section 25, Article XVIII of the Constitution.

32 See Article VI, Section 28 (4) of the Constitution.


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d) Agreement which establishes the headquarters of an internationalorganization, with concomitant grant of immunities to the organizationand its officials

e) Agreement on the transfer of sentenced persons, since the exerciseof criminal jurisdiction is based on the territoriality principle; and

f) Other agreements, “especially multilateral conventions, involving politicalissues or changes of national policy or involve internationalarrangements of a permanent character,” pursuant to the Commission ofCustoms ruling.33

Foreign Loan. There are three broad categories of agreements which do notfall within the realm of the Vienna Convention on the Law of Treaties and ExecutiveOrder No. 459, namely foreign loans, grants and commercial contract. These aregoverned by domestic law.

The President is authorized under Article VII, Section 20 of the Constitutionto contract or guarantee foreign loans, with the prior concurrence of the MonetaryBoard. Thus:

Section 20. The President may contract or guarantee foreign loans on behalfof the Republic of the Philippines with the prior concurrence of the MonetaryBoard, and subject to such limitations as may be provided by law. The MonetaryBoard shall, within thirty days from the end of every quarter of the calendaryear, submit to the Congress a complete report of its decision on applications forloans to be contracted or guaranteed by the Government or government-ownedand controlled corporations which would have the effect of increasing theforeign debt, and containing other matters as may be provided by law.

Foreign loans are generally entered into by the Department of Finance. OtherDepartments, including the DFA, may conclude them only with the endorsementfrom the finance department. As the Constitution prescribes a distinct negotiationand approval process, foreign loan agreements do not undergo the usual treatyratification procedure.

Grant/Official Development Assistance. The procedure for the conclusionof foreign grants and official development assistance (ODA) is governed by The OfficialDevelopment Act of 1996 (R.A. No. 8182). These agreements require endorsement fromthe National Economic Development Authority34 as these have to be in line withnational development plans and particularly when there are requirements for localcounterpart funding.

33 OLA Office Order No. 1 – 2007.

34 Official Development Act of 1996 (R.A, 8182).



Commercial or Private Contract. An agreement between the Governmentor any of its subdivisions/agencies and a private entity or an entity which is not asubject of international law is a commercial or ordinary contract.35 Agreements ofthis type are not within the realm of the Vienna Convention on the Law of Treaties.

In the authoritative book Modern Treaty Law and Practice, Anthony Aust describesthe following as agreements which are governed by domestic law even if concludedbetween states:

States can also contract with each other under domestic law. They may do so if the subjectmatter is exclusively commercial, such as the purchase of commodities in bulk… If a stateleases land from another state for an embassy there will usually be an instrument underdomestic law, such as a lease, though this may be granted pursuant to treaty… Treatiesconcerning loans may provide that the contractual arrangements for the loans shall begoverned by the law of the lender state.36

VI. Procedure in the Negotiation and Ratification of Agreements37

A. Issuance of Full Powers or special authority

Executive Order No. 45938 provides the guidelines in the negotiation ofinternational agreements and their ratification. As a matter of policy, the negotiationof treaties and executive agreements shall be coordinated with, and made only withthe participation of the Department of Foreign Affairs (DFA).39

Prior to the negotiation of a proposed international agreement, authorizationshould first be secured from the President by the lead government department oragency through the Secretary of Foreign Affairs. The DFA geographic office whichcovers the area or subject matter40 is the conduit for securing the authorization.

The request for authorization shall be in writing, proposing the compositionof the Philippine negotiating delegation and recommending the range of positionsto be taken by the delegation.41 The negotiating positions are generally classified as“confidential.” The composition of any Philippine panel and the designation of itschairperson shall be made in coordination with the DFA.42

35 Aust, p. 16.

36 Ibid., p. 24.

37 OLA Circular No. 01-07.

38 Issued November 25, 1997 by President Fidel V. Ramos.

39 Executive Order No. 459, section 1.

40 These are principally the Offices of American Affairs, Asian and Pacific Affairs, European Affairs and theMiddle East and African Affairs, for bilateral agreements, and the Offices of ASEAN Affairs and the UnitedNations and other International Organizations, for multilateral agreements.

41 Executive Order No. 459, section 3.

42 Ibid., Section 1.


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For agreements requiring the concurrence of the Senate, the authorizationshall be in the form of Full Powers and formal instructions. Full Powers, as definedin Executive Order No. 459, is “the authority granted by a head of State or Government to adelegation head enabling the latter to bind his country to the commitments made in the negotiationsto be pursued.”43

For agreements not requiring Senate concurrence, a written authorization fromthe President is sufficient.44

A special authority is generally not required for the signing of a declaration,letter of intent, joint communiqué, joint statement and the other political documents.

Signing of other types of MOUs whose texts indicate intent to be bound shouldrequire prior special authority.

The issuance of Full Powers or written authorization is made by the Presidentwho may delegate this function to the Secretary of Foreign Affairs.45

The following shall not be required Full Powers or written authorization priorto negotiating or signing an international agreement:46

1. The Secretary of Foreign Affairs.2. Heads of Philippine diplomatic missions, for the purpose of adopting

the text of an agreement between the Philippines and the state to whichthey are accredited.

3. Representatives accredited by the Philippines to an internationalconference or to an international organization or one of its organs,such as the Philippine Permanent Representative to the United Nationsor to ASEAN, for the purpose of adopting the text of a treaty in thatconference, organization or organ.

B. Negotiations

When an agreement is proposed by another country or internationalorganization for the consideration of the Philippines, or vice versa, the DFAgeographic office which is responsible for the country’s relations with the otherparty, shall request the views of other relevant DFA offices and other governmentagencies, by convening inter-office/agency meetings or through referrals for thelatter’s’ comments.

43 Ibid., Section 2 (d).



46 Ibid.



The lead office or agency then convenes a meeting of the members of thenegotiating panel prior to the commencement of negotiations for the purpose ofestablishing the parameters of the negotiating positions.47 No deviation from theagreed parameters shall be made without consultations with the members of thenegotiating panel.48

C. Signing of the Agreement

In the case Pimentel vs. Executive Secretary,49 the Supreme Court clarified thatsigning and ratification are two separate and distinct steps in the treaty-makingprocess:

If and when the negotiators finally decide on the terms of the treaty, the same is opened forsignature. This step is primarily intended as a means of authenticating the instrument andfor the purpose of symbolizing the good faith of the parties; but, significantly, it does notindicate the final consent of the state in cases where the ratification of the treaty is required.The document is ordinarily signed in accordance with the alternat, that is, each of theseveral negotiators is allowed to sign first on the copy which he will bring home to his ownstate.

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

D. Ratification by the President

After the signing of an agreement, the DFA geographic office transmits toOLA the original and/or certified true copy of the agreement. When transmittingthe agreement, it is accompanied by the following, in line with DFA DepartmentOrder No. 21-99 dated 25 August 1999:

1. Certificates of concurrence of the agencies that participated in theinter-agency consultations and the negotiations; and

2. A summary of the benefits that will accrue to the Philippines oncethe agreement enters into force.

OLA then prepares the draft memorandum for the President, for the signatureof the Secretary of Foreign Affairs, recommending the ratification of the signedagreement. If the agreement requires Senate concurrence, a draft letter-endorsementfrom the President to the Senate President is enclosed.


48 Ibid.

49 G.R. No. 158088 (2005).


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The original agreement is deposited with the Foreign Service Institute’s CarlosP. Romulo Library, which serves as the archives of these agreements and other papers.

In its Pimentel ruling, the Supreme Court stated:

Under our Constitution, the power to ratify is vested in the President, subject to the concurrenceof the Senate. The role of the Senate, however, is limited only to giving or withholding itsconsent, or concurrence to the ratification. Hence, it is within the authority of the Presidentto refuse to submit a treaty to the Senate or, having secured its consent for its ratification,refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed inits behalf is a serious step that should not be taken lightly, such decision is within thecompetence of the President alone, which cannot be encroached by this Court via a writ ofmandamus.

The Senate does not ratify a treaty. It concurs in the President’s ratification ofa treaty.50

E. Concurrence of the Senate

For international agreements that require the concurrence by the Senate ofthe ratification made by the President, the latter transmits the signed treaty to theSenate. The relevant DFA geographic office coordinates with the proponent/implementing agency in preparing the policy papers, for the perusal of the SenateCommittee on Foreign Relations, and in presenting and justifying the agreementduring the concurrence hearings.

The policy papers should contain information about the agreement that couldaddress the frequently-asked questions during committee hearings, such as the nature,objective and other highlights of the agreement, its negotiating history, and the numberof countries that have ratified the agreement, if it is multilateral in character. It shalllikewise identify the benefits and relative importance of the agreement to the country.

In the Senate, the treaty undergoes three readings, as follows:51

The First Reading consists of reading the title of the treaty, after which theSenate President transmits it to the Committee on Foreign Relations. The committeehas 15 members. Of the 15 members, ten seats are reserved for the majority partyand five to the minority. In practice, every committee meets once a month. TheRules of the Senate require that notice of meeting, including the agenda, place andtime of the meeting, shall be given three days in advance to committee members.

50 Santiago, Procedure for Senate Concurrence to Treaties, p.1

51 Rules of the Senate, Rule 36, titled “Concurrence in Treaties”; see also Senator Miriam Defensor Santiago,Procedure for Senate Concurrence to Treaties, p. 3.



At the committee hearing, the Secretary of Foreign Affairs or a senior DFAofficial will present the treaty and recommend concurrence, to be followed by thehead or senior official of the proposing or implementing agency. Views on theproposed treaty from concerned sectors, if any, are heard.

A committee report is then prepared. A report and its recommendation mustbe approved by a majority of the regular committee members, plus the ex-officiomembers. If the report is unfavorable, the proposed treaty is transmitted to thearchives of the Senate, in which case it dies a natural death. It may be recalled thataccording to the Constitution, “No treaty or international agreement shall be valid andeffective unless concurred in by at least two-thirds of all the Members of the Senate.52

During the Second Reading, the Chairperson of the Senate Committee onForeign Relations delivers a sponsorship speech at the plenary session, to be followedby a formal debate. As noted by Senator Santiago, “Unlike a bill, a treaty is not subject toamendment…”53

The Third Reading is limited to the reading of the title of the treaty. Notreaty is considered concurred in by the Senate unless it has passed three readingson separate days, and printed copies are distributed to the Senators three daysbefore its passage, except when the President certifies to the necessity of its immediateconcurrence to meet a public calamity or emergency. The treaty is then submitted tofinal vote by yes and no. The votes of at least two-thirds of all the Members of theSenate are required for concurrence to a treaty.

Accession, which is a method by which a state that is not among a treaty’soriginal signatories becomes a party to it, follows the same ratification/concurrenceprocess.

F. Declaration or Reservation

It is possible for a party to a treaty to make an interpretative declaration atthe time of signature or ratification of a treaty.

A declaration is defined as follows:

A unilateral declaration, however phrased or named, made by a State or by an internationalorganisation whereby that State or organisation purports to clarify the meaning or scopeattributed by the declarant to the treaty or to certain of its provisions.54

52 Article VII, Section 21.

53 Santiago, p. 5. She added:”… although, as in the case of the controversial Japan-Philippine Economic PartnershipAgreement, I shall recommend a conditional concurrence.” See also Joaquin Bernas, S.J., Foreign Relations inConstitutional Law (1995), p. 111: “The Senate might give its concurrence but impose conditions or reservationsrelated to its content. In such an eventuality, renegotiations might become necessary.”

54 UN Doc. A/CN.4/491/Add, 4. Paragraph 361, as quoted in Aust, Modern Treaty Law and Practice, p. 102.


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On the other hand, the Vienna Convention defines a reservation as:

A unilateral statement, however phrased or named, made by a State, when signing, ratifying,accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify thelegal effect of certain provisions of the treaty in their application to that State.55

If the negotiating panel deems the making of a declaration or reservation asnecessary, and the agreement, which is often of the multilateral type, allow adeclaration or reservation upon signing, accession or on the deposit of the Instrumentsof Ratification, then a declaration or reservation can be drafted and then made onthe signing, accession or ratification, or upon the deposit of the instrument ofratification.

The making of a reservation or declaration may be part of the negotiatingparameters of the negotiating panel.

G. Notification after Ratification

Upon its receipt of the Instrument of Ratification (and the Senate Resolutionconcurring in the ratification made by the President, if applicable), OLA notifiesthe concerned offices and agencies of the date of signature of the Instrument ofRatification as well as the date of the Senate Resolution, if applicable.

OLA transmits a Note verbale to the embassy of the other contracting State,or the international organization, notifying the latter of the ratification of theagreement in order to determine the date of its entry into force.

If the agreement requires that the original Instrument of Ratification bedeposited with a depositary State or international organization for the agreement toenter into force, OLA transmits the original Instrument to the concerned DFAgeographic office. The latter makes the deposit and informs OLA of the actiontaken, as well as the date of the entry into force of the agreement.

H. Entry into Force

All international agreements generally undergo the domestic legal requirementsof ratification,56 except those that implement existing agreements and foreign loanagreements and commercial contracts, as noted earlier.

An international agreement enters into force only upon compliance withdomestic ratification requirements.

55 Article 2 (1) (d).

56 Executive Order No. 459, Section 6 (a).



An agreement that provides that it will enter into force upon signature isconsidered as entering into force provisionally. Provisional entry into force is allowedonly if it is shown that a pressing national interest will be upheld. In consultationwith concerned agencies, the DFA determines whether an international agreementor any amendment thereto, shall be given provisional effect.57

An international agreement, which requires the concurrence of the Senate,may not be given provisional effectivity, in keeping with Article VII, Section 21 ofthe Constitution.

This study is a modest attempt at documenting the treaty law and practice at,and from the perspective of, the Philippine Department of Foreign Affairs.

It is hoped that the study leads to a deeper understanding and appreciation ofthis dynamic field where constitutional law, public international law and foreignpolicy intersect. May it lead also facilitate an adept conduct of diplomacy in pursuitof the country’s interests in the community of nations.

� �

57 Ibid., Section 6 (b).

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Marvic M.V.F. Leonen

An Essay on the Incorporation

Clause of the Constitution

as a Juridical Enigma

Merlin M. Magallona*

i. Principles of International Law as Philippine Law

The Incorporation Clause of the Constitution reads in Section 2, Article II:

The Philippines […] adopts the generally accepted principles ofinternational law as part of the law of the land. […]

It is by this provision that the Constitution incorporates a body of principlesof international law into Philippine law. Since these principles are “part of the law ofthe land,” they are applied in domestic law as Philippine law. Intriguingly enough, ifthey assume the status of Philippine law, do they cease to be international law?

The complexity of this problem has never been investigated and continues togenerate confusion in the application of these principles, without scrutiny.

Incorporation (or internalization) has given rise to the dual character of theseprinciples. They remain in the nature of international law operating on theinternational plane governing the relations of States and other subjects of internationallaw. At the same time, they are a category of national law binding upon subjects ofPhilippine law. The former may be referred to as objective international law and thelatter Philippine practice of international law. Their respective modalities of operationin each legal system are not interchangeable; failure to observe this distinctionresulting from their interchangeability becomes the crux. In particular, the applicationof these principles as national law in the context of international law operating onthe international plane would give rise to an anomaly in judicial reasoning, asexemplified in the application of pacta sunt servanda. This principle of generalinternational law mandates that “Every treaty in force is binding upon the parties toit and must be performed by them in good faith.”1 The ponencia in Tañada vs. Angara2

invokes this principle as “part of the law of the land” in the Incorporation Clause, acase in which the very constitutionality of a treaty is under attack and the Supreme

* Professorial Lecturer; Former Dean and Professor of Law, University of the Philippines College of Law.

1 As codified in Article 26 of the Vienna Convention on the Law of Treaties.

2 272 SCRA 18, at 66 (1997). This case pertains to the constitutionality of the Agreement Establishing the WorldTrade Organization (WTO) and the annexed agreements.

1 9VOLUME 35 NUMBER 1 (AUGUST 2010)

An Essay on the Incorporation Clause

of the Constitution as a Juridical Enigma

Court is called upon to exercise its review power which empowers it to strike downa treaty as unconstitutional or invalid.3

The “generally accepted principles of international law” as constitutionallyinternalized derive and continue to derive their content from objective internationallaw. This process, over time, may create changes in the content or character of theprinciples on the international plane, causing discrepancy between the same principlesin the two legal systems. Progress in the development of these principles on theinternational plane may occur at a pace faster than in Philippine practice of the sameprinciples. On the international plane, progress is in terms of dynamics of generalpractice of States; whereas, in national law, through the exercise of judicial functionby the Supreme Court. The problem of discrepancy, however, may fail to berecognized except in the awareness of the distinction between objective internationallaw and Philippine practice.

A peculiar feature of the law of the Incorporation Clause is that it is placedbeyond the competence of national law to change its content nor to repeal it; adeliberate attempt to amend it in a manner incompatible with objective internationallaw may alter its status as “generally accepted principles of international law” and,hence, may erode away the juridical basis of its status as national law. Theseconsequences may be said to be the logical implications of the constitutional statusthat characterizes the Incorporation Clause principles.

The heart of the enigma lies in the fundamental problem that the IncorporationClause is designed by the Constitution as the transformative process by which abody of principles in objective interactive law becomes national law, but the identityof these principles as individualized is not known. It is a serious deficiency of anormative system to institute norms or principles as law, and in the same processwhat is constituted as law is deprived of its precondition of legality, namely, theindividual identity of the principles in question, which lends it the necessary elementof enforceability and effectiveness.

“[G]enerally accepted principles of international law” in the IncorporationClause is a categorization of international legal principles for the purpose of makingthem national law. Excluded from this category for this purpose are principleswhich are not “generally accepted.” This categorization becomes a constitutionaldirective to the effect that only principles within the scope of this category will beaccorded the status of national law. More important, perhaps, is that it necessarilyimplies the grant of authority to identify the principles of rules that will be effectuatedas national law. In this light, obviously, the whole category “generally acceptedprinciples of international law” by itself cannot be intended to be invoked as applicableor enforceable law in support of a claim in a legal dispute. But it is the premise orjustification for the status and application of each individualized principle if it is tooperate as national law, without which such principle will not qualify as “part of the

3 See Section 5(2)(a), Article VIII of the Constitution.

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Merlin M. Magallona

law of the land.” The category is provided as a criterion for identifying the operativerules which embody rights and duties. It makes no sense in having this categorywithout individualizing the principles within its scope and there is no sense havingthe individual principles identified in the absence of such category. Categorizationand individualization are integral to the whole, useless each without the other.

This outlook gives clearer light to the view that the Incorporation Clauserequires the exercise of the implied authority to identify the operative rules in termsof specific rights and duties by way of compliance with the constitutional mandatethat the “generally accepted principles of international law” be made part of Philippinelaw. In other words, the Incorporation Clause being non-self-executory, there arisesthe duty to effectuate it, which leads to its execution through the identification ofthe individualized principles as thus determined as national law, and in the sameprocess applies them in the resolution of a legal dispute.

II. Problems in Execution of the Incorporation Clause

In the exercise of its constitutional function, the Supreme Court has identifiedindividual principles of international law in applying them as national law in a numberof cases, in every instance showing that it is interpreting the “generally acceptedprinciples of international law” under the Incorporation Clause. Thus, the Court inMejoff vs. Director of Prisons4 applies as national law the “right to life and liberty and allother fundamental rights as applied to all human beings,” proclaimed by the UniversalDeclaration of Human Rights, in relation to the fact that “by its Constitution (Art.II, Sec. 3) the Philippines ‘adopts the generally accepted principles of internationallaw as part of the law of the Nation’.”5 In Marcos vs. Manglapus,6 the Court says: ”Theright to return to one’s country is not among the rights specifically guaranteed in theBill of Rights, which treats only of the liberty of abode and the right to travel, but itis our well-considered view that the right to return may be considered, as a generallyaccepted principle of international law and, under our Constitution, as part of thelaw of the land.”7

As illustrated in these cases, the modality applied in dealing with theIncorporation Clause is comprised of invoking the category of principles, identifyingthe individualized principle and applying it. If on the whole this modality has settledas established practice, as it does, then the identity of the national-law rules isdetermined by the exercise of judicial function, from which the following problemsare:

4 90 Phil. 70 (1951).

5 As provided in the 1973 Constitution.

6 177 SCRA 668 (1959).

7 In denying the issuance of travel documents to the petitioners, the Court is apparently mindful of the restrictionto this right under the International Covenant on Civil and Political Rights, pertaining to national security andpublic order. See Article 12(2) and (3) of the Covenant.




How is the date of effectivity of these rules determined? Do they take effectsimultaneously with the Incorporation Clause as part of the Constitution? If so, dothey take effect in the absence of their identity and substantive content?

If the individualized rules or principles derive the date of effectivity from thepromulgation of the Supreme Court decision in which they are identified as nationallaw under the Incorporation Clause, it may appear that their nature as operativerules comes into existence only after the fact, i.e., after the situation they are intendedto govern has taken place. Necessarily, in effect, they are made to govern such asituation by the retroactive application of the Court’s decision, in contravention ofthe fundamental principle of legality.

While the process of identification as a precondition for defining their natureas national-law rules may be conveniently passed on as a normal judicial function ofinterpretation, there remains the problem of constructive rule-making in which theact of identifying what is the law is a virtual creation of rules in national law. In theforegoing context, is the Supreme Court engaging in a judicial or legislative function?At any rate, in the last 60 years, less than 50 principles have been declared by theSupreme Court as within the scope of the Incorporation Clause. Mostly, however,they are covered by obiter dicta; invariably, there is no showing that they are made tocorrespond to the substantive content of general international law on the internationalplane.

May Congress enact a catalogue of principles in implementation of theIncorporation Clause, as alternative to incorporation as a judicial act? It seems soextraordinary that what appears as a non-self-executory provision of the Constitutionis subjected to “execution” by judicial function. Is it time that the process shouldnow “cross the Rubicon that divides the judicial and the legislative powers,” to borrowthe words of Lord Devlin?

III. Philippine Practice in Supreme Court Decisions

In an obiter in U.S. vs. Guinto8 the Supreme Court contextualizes theIncorporation Clause in a larger theoretical frame:

Sovereign immunity is one of the generally accepted principles of internationallaw that we have adopted as part of the law of the land under Article II, Section 2 [ofthe Constitution].

Even without such affirmation, we would still be bound by the generallyaccepted principles under the doctrine of incorporation. Under this doctrine ofincorporation, as accepted by the majority of states, such principles are deemedincorporated in the law of every civilized state as a condition and consequence of its

8 182 SCRA 644 (1990).

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Merlin M. Magallona

membership in the society of nations. Upon the admission to such society the stateis automatically obliged to comply with these principles in relation with other states.

Here, by a make-believe theoretical construction, a monist view is attributedto the character of the “generally accepted principles of international law” in theIncorporation Clause. The purpose of this Clause, according to Guinto, is to makesuch principles binding on the Philippines; but in the same breath it asserts thisfunction is needless because even without the Incorporation Clause under the doctrineof incorporation the Philippines “would still be bound by these principles. In thismythical world, what appears as customary or general international law – of whichthe constituent norms are the generally accepted principles — appear as an impositionon States, helpless before the mechanical operation of a process by which the Statesare “automatically obliged to comply with these principles.” Certainly, as thusimagined, the Incorporation Clause becomes a surplusage and reduces the intent ofthe Constitution’s framers pertaining to it an idle play of words.

The real world may instead be reflected in the perspective of the PermanentCourt of International Justice as expressed in the Lotus Case (PCIJ, Series A, No. 10,1927, p. 18), as follows:

International law governs the relations between States. The rules of law bindingupon States therefore emanate from their own free will as in conventions or byusages generally accepted as expressing principles of law and established in order toregulate the relations between those co-existing independent communities with aview to the achievement of common aims.

It is true, as indicated in Guinto, that generally accepted principles ofinternational law are binding on the Philippines without this affirmation in theIncorporation Clause. However, this pronouncement is made on the assumptionthat the object and purpose of the Clause is to make this body of principles bindingon the Philippines — which may be a misconception.

Independent of its Constitution, the Philippines is bound by obligations arisingfrom general international law as a State, as a person in the international legal order.They are obligations that pertain to objective international law as it operates on theinternational plane. In this light, the rights and duties of the Philippines are createdand are governed by international law. In general, they are binding on subjects ofinternational law.

This may have been the context of the binding character of the principles ofinternational envisaged by Guinto. As a departure from this vantage point, thepurpose of the Incorporation Clause is to internalize the principles of generalinternational law into Philippines law, insofar as they are identified in theirindividualized nature. It is as national law that in domestic jurisdiction they createrights and duties binding on subjects of Philippine law. The transmutation of theseprinciples into Philippine law gives way to the following consequences:




1. In Philippine jurisdiction, these principles are subordinated to theConstitution; their operation is subject to constitutional and legal standards. Indeed,they derive their operative validity from the Constitution by virtue of the proclamationin the Incorporation Clause that they are constituted as national law. This marks aradical departure from their legal status in the international sphere as constituentnorms of objective international law in which they hold supremacy over theConstitution itself and statutory law.

2. The application of these principles as national law pertains to subjects orpersons of Philippine law, comprising of individual natural persons and juridicalentities, thus striking a difference from their status in the international order inwhich they govern the legal relations of States and other persons of internationallaw.

From this standpoint, it is inaccurate to assert, as does Tañada vs Angara,9 that“[b]y the doctrine of incorporation, the country is bound by the generally-acceptedprinciples of international law which are considered to be automatically part of ourlaws,” referring to the Incorporation Clause. In the first place, it is not by thedoctrine of incorporation that the principles in question become national law, but bythe proclamation of the Constitution. Secondly, it is not the Philippines that isbound by its own national law derived from such principles; rather, it is the Philippinesthat makes its law binding on persons within its jurisdiction. What is binding on thePhilippines as a State are such principles operating as objective international law,not as its own national law.

It is not at all out of context to refer to problems in regard to the applicationof objective international law within Philippine jurisdiction, as contrasted to theoperation of principles under the Incorporation Clause. In Republic vs. Sandiganbayan,10

the Supreme Court deals with what it describes as “interregnum,” the period afterthe abrogation of the 1973 Constitution by the “people power revolution” and beforethe installation of the 1987 Constitution, during which violations of human rightswere allegedly committed. During the interregnum, says Republic, “a person couldnot invoke any exclusionary right [in evidence] under a Bill of Rights because therewas neither a constitution nor a Bill of Rights during the interregnum.” Nor wasthere an Incorporation Clause.

Hence, Republic arrives at the following conclusion:

We hold that the Bill of Rights under the 1976 Constitution was not operativeduring the interregnum. However, we rule that the protection accorded to individualsunder the Covenant and the Declaration remained in effect during the interregnum.11

9 272 SCRA 18, at 66 (1997).

10 407 SCRA 10 (2003).

11 407 SCRA 10, at 51 (2003).

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Merlin M. Magallona

Significantly, in applying the Universal Declaration of Human Rights and theInternational Covenant on Civil and Political Rights, as affirmed above, Republicexplains that:

[…T]he Court considers the Declaration as part of customaryinternational law, and that Filipinos as human beings are proper subjects ofinternational law laid down in the Covenant. The fact is the [“people power”]revolutionary government did not repudiate the Covenant or theDeclaration in the same way it repudiated the 1973 Constitution. As thede jure government, the revolutionary government could not escaperesponsibility for the State’s good faith compliance with its treatyobligations under international law.12

Absent the Incorporation Clause, Republic could not have applied human rightsprotection as national law derived from “generally-accepted principles of internationallaw.” It applies the Declaration, or its constituent rights, (a) as customary internationallaw and (b) not in the interest of Filipinos as citizens but as human beings, by thesetwo factors signifying that Republic is applying objective international law on theinternational plane, not as Philippine law — the first phenomenon of its kind inPhilippine jurisprudence.

It is not clear how the protection under the Covenant would apply. In invokingit, Republic may be understood to mean that protection becomes operational on accountof breach of obligations under the Covenant. But under the Covenant the relevantapproach may consist in the invocation of State responsibility. Necessarily, this is tobe addressed to the State Party who committed the internationally wrongful act.Republic fails to recognize this problem.

Consider the absurdity Republic has created. A domestic court established bya national constitution administering justice on violation of human rights upon thepetition of individual natural persons as subjects of international law, not nationallaw, and therefore they derive rights and obligations from objective internationallaw operating on the international plane as customary law. The perpetrators ofhuman right violations must also necessarily be subjects of international law andthey are parties to the dispute in which they are charged of having breached obligationscreated under international law. Logically, the court must have assumed the functionof an international tribunal, but in truth it is an institution of national jurisdiction.Its judgment certainly has no bearing at all in the context of objective internationallaw in which it assumes no validity. It remains integral to national law which definesthe court’s jurisdiction. Its judgment binds no one in the international sphere; itsapplication of principles of customary or general international law is of dubiousvalidity in domestic jurisdiction because the Philippine legal system requires theseprinciples to be internalized as national law as a sine qua non for application.

12 407 SCRA 10, at 58 (2003). Emphasis added.




It must be underscored that what Republic means in reference to the legal statusof Filipinos is that they are beneficiaries in human rights treaties which are concludedby States as subjects of international law. It is true that individual natural persons maybecome subjects or persons of international law but only under conventionalinternational law, i.e., by treaty concluded by States, which define their rights andobligations. It is only by this process that they become bearers of internationalpersonality.

In reference to the continued binding character of the Covenant during theinterregnum, it would be less problematic if the distinction between State andGovernment is kept in mind. The State as a person in international law is notaffected by internal changes in the Government even as such changes bring about arevision of fundamental law or restructuring of its institutions. The identity andcontinuity of the State in terms of its rights and obligations under international lawis maintained despite “revolutionary” changes, such as those brought about by “peoplepower.”

Agustin vs. Edu13 relates itself to the Incorporation Clause in the following manner:

It cannot be disputed then that this Declaration of Principle foundin the Constitution possesses relevance: “The Philippines […] adopts thegenerally accepted principles of international law as part of the law of theland [. . .T]”he 1968 Vienna Convention on Road Signs and Signals isimpressed with such a character.14

One is likely to be bemused, if not amused, at the implication in Agustin thatroad signs and signals have become principles of law. Be that as it may, it makes nosense in referring to the Vienna Convention in its entirety as impressed with thecharacter of “generally accepted principles of international law.” The nature andform of this category of principles defies reference to the entire internationalconvention. By its nature as a source of law, the binding character of this Conventionis restricted to its States Parties, in contrast to generally accepted principles ofinternational law which are binding on all States. Agustin may even be taken to implythat the entire Convention becomes national law by virtue of the IncorporationClause. But previous to Agustin, is it correct to suppose that the Convention beenalready transformal into “valid and effective” domestic law on account of the TreatyClause of the Constitution? Agustin may have, in effect, made the ConventionPhilippine law twice. This seems to be true with respect to the right to return toone’s country under the International Covenant on Civil and Political Rights inMarcos vs. Manglapus15, and to the special duty of the receiving State to protect thediplomatic premises of the sending State under the Vienna Convention on DiplomaticRelations in Reyes vs. Bagatsing.16 In both cases, the principles embodied in13 88 SCRA 195 (1979).

14 Ibid., at 213.

15 Supra, note 6.

16 In both cases, the principles embodied in international conventions which are already binding on the Philippines as State Partyare subsequently subsumed under the Incorporation Clause by which again they become part of Philippine law.

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Merlin M. Magallona

international conventions which are already binding on the Philippines as State Partyare subsequently subsumed under the Incorporation Clause.

Philippine practice in this sense has the effect of importing treaty norms to theregime of Incorporation Clause principles, unmindful of the nature of these principlesas customary or general international law, in contrast to the binding character ofconventional or treaty norms as limited to the parties to it.

IV. Incorporation Clause and the Hierarchy of Norms

in International Law

An inquiry into the hierarchy of norms in international law is intended toexplore categories of law by way of determining some criteria for priority in theapplication of “generally accepted principles of international law.” To begin with,how is this phraseology to be interpreted?

It is submitted that this phraseology is to be understood as the general rulesof customary law or general international law, considered to be binding on all States.In the Lotus Case, cited above, the Permanent Court of International Justice describesthis category as “expressed … by usages generally accepted as expressing principlesof law.” The principles are within the scope of Article 38(1)(b) of the Statute of theInternational Court of Justice in referring to international custom as “general practiceaccepted as law.” They preclude rules which are binding only on a few or a smallnumber of States. It is suggested that it is by reason of the binding character ofthese principles on all States that provides a decisive rationale to their status underthe Incorporation Clause.

1. Out of the whole corpus of general international law, the Vienna Conventionon the Law of Treaties creates the category of peremptory norms (jus cogens) whichhas acquired supremacy over treaties concluded in conflict with such norms. Theyhave become the standard of validity of treaties. Article 53 of this Conventiondefines peremptory norms and describes their binding character with respect totreaties, thus:

A treaty is void if at the time of its conclusion, it conflicts with a peremptorynorm of general international law. For the purposes of the present Convention, aperemptory norm of general international law is a norm accepted and recognized bythe international community of States as a whole from which no derogation ispermitted and which can be modified only by a subsequent norm of generalinternational law having the same character.

It is provided in Article 64 of the Convention that the emergence of a newperemptory norm is a ground for termination of treaties.




The imperative character of obligations arising from a peremptory or jus cogensnorm is applied beyond the law of treaties. Under the law of State responsibility,wrongfulness of an act in breach of these obligations is not in any way precluded orexcused.17

2. Principles or norms that embody erga omnes obligations are said to prevailover those which bind one State in relation to another State. In the Barcelona TractionCase, the ICJ declares:

[….A]n essential distinction should be drawn between the obligationsof a State towards the international community as a whole, and thosearising vis-à-vis another State . [. . .] By their very nature the former are theconcern of all States. In view of the importance of the rights involved, allStates can be held to have a legal interest in their protection: they areobligations erga omnes.18

In contemporary international law, erga omnes obligations are derived from“outlawing of acts of aggression, and of genocide, as also from the principles andrules concerning the basic rights of the human person, including protection fromslavery and racial discrimination.”19

3. Obligations of Member States under the Charter of the United Nations arecovered by the supremacy clause of Article 103. It provides:

In the event of a conflict between the obligations of the Members of the UnitedNations under the present Charter and their obligations under any other internationalagreements, their obligations under the present Charter shall prevail.

These obligations under the UN Charter are derived from the principles whichare binding on Member States as well as on the UN Organization itself, amongwhich are:

(a) sovereign equality of States;(b) the duty to fulfil in good faith the obligations assumed by them “in

accordance with the present Charter”;(c) the duty to settle international disputes in a peaceful manner; and(d) prohibition against the threat or use of force against the territorial integrity

or political independence of any state, “or in any manner inconsistent withthe Purposes of the United Nations.”

(e) Universal respect for, and observation of, human rights and fundamentalfreedoms with distinction as to race, sex, language or religion.20

17 See Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts prepared by theInternational Law Commission.

18 ICJ Reports, 1970, pp. 3, 32.

19 Id.

20 See UN Charter, Arts. 2, 55 and 56.

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Merlin M. Magallona

In the Declaration on Principles of International Law Concerning FriendlyRelations and Cooperation Among States in Accordance with the Charter of theUnited nations, adopted by the UN General in Resolution 2625 (XXV) on 24 October1970, the Member States in consensus accept and recognize that the following“constitute basic principles of international law:”

(a) The principle that States shall refrain in their international relations fromthe threat or use of force against the territorial integrity or politicalindependence of any state, or in any other manner inconsistent with thepurposes of the United Nations.

(b) The principle that states shall settle their international disputes by peacefulmeans in such a manner that international peace and security and justiceare not endangered.

(c) The principle concerning the duty not to intervene in matters under thedomestic jurisdiction of any state, in accordance with the Charter.

(d) The principle of equal rights and self-determination.

(e) The duty of States to cooperate with one another in accordance with theCharter.

The principles catalogued above have been recognized by the internationalcommunity as a whole as general international law. They embody obligations whichevery State owes to the international community. Hence, these obligations areproperly regarded as erga omnes. Inevitably, by the nature of jus cogens norms theyembody erga omnes obligations. Even as all erga omnes obligations may not be in thenature of jus cogens norms, jus cogens norms necessarily embody erga omens obligations.The juridical character of the jus cogens norms as well as of erga omnes obligations isdeemed to be established by the international community as a whole.

What may appear as in the theory of actio popularis is the formulation of theinternational Law Commission under its Draft Articles referred to above. DraftArticle 33 defines the scope of the obligation of the responsible State as includingthose owed “to the international community as a whole.” A State injured by aninternationally wrongful act, under Draft Article 42, is entitled to invoke theresponsibility of another State on account of such act “if the obligation breached isowed to … the international community as a whole.” It becomes an internationallywrongful act not only against one State but injurious to the interest of the internationalcommunity as a whole.




V. Concluding Note

The presentation in this essay is addressed to the problem as to the moreconcrete identification of what are “generally accepted principles of internationallaw” which are constitutionally proclaimed as Philippine law under the IncorporationClause. It may serve to provide a guideline by which this category of national lawestablishes its correspondence with relevant principles of general international lawin terms of their substantive content, in the face of failure in Philippine practice toinquire into such correspondence, leading to arbitrary or whimsical assumption asto what might be the substantive content of the Incorporation Clause principles asdetermined by objective international law. It is an attempt to contribute to resolvingthe enigma that is the Incorporation Clause which declares that something isconstituted as law, without telling us what it is in operational identity: In one corner,the Constitution hides a law that is non-law in public knowledge.

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Defining Regulatory Spaces:

Precautionary Principles, Regulatory

Diversity and the SPS Treaty of the

WTO Agreement*

Marvic M.V.F. Leonen**

“Humankind has not woven the web oflife. We are but one thread within it.Whatever we do to the web, we do toourselves. All things are boundtogether. All things connect.”

~Chief Seattle

“When one tugs at a single thing innature, he finds it attached to the rest ofthe world.”

~John Muir

“Our environment, the world in which welive and work, is a mirror of our attitudesand expectations.”

~Earl Nightingale

The Precautionary Principle encourages international actors not to hesitate toprovide more protection to human, animal and plant life and their ecosystems againsta perceived harm even in the absence of clear scientific proof. It is implicitly basedon the acceptance that collective human knowledge may have not been able to fullycomprehend with certainty, the consequences of all human activity. In all of itsversions, it is therefore necessarily broad and encompassing.

On the other hand, the World Trade Organization (WTO) through its Sanitaryand Phytosanitary Safeguards (SPS) Treaty and the interpretations of its AppellateBody, while not necessarily disagreeing with the Precautionary Principle or its

* Preliminary version, presented during the Third Asian Law Institute (ASLI) Conference: The Development ofLaw in Asia: Convergence versus Divergence, May 25 to 26, 2006, East China University of Politics and Law,Shanghai, Peoples Republic of China.

** Dean and Professor, College of Law, University of the Philippines; Professorial Lecturer, Department ofConstitutional Law, Philippine Judicial Academy. The author invites comments through [email protected].





objectives, has effectively limited its application. This is so because of the WTO’sconcern that these measures may be used to unjustly or arbitrarily discriminatebetween goods or services on the basis of their origin or that these measures couldbe used as a disguised restriction to trade. In the WTO-SPS version, thePrecautionary Principle is precise and limited to conditions stated in Article 5Paragraph 7 of the treaty.

The range of options to address perceived harm to human, animal, plant lifeand health as well as their ecologies therefore is now limited. Only limited regulatorydiversity is allowed. The extent of this limit is mediated by science. More specifically,in the context of the WTO, the limit is determined by the Appellate Body’s toleranceof scientific interpretation. The current approach therefore transplants the politicsof who can do more science, the availability of scientific analysis, and the dynamic ofownership of scientific approach into this area of international legal interpretation.

The Broad Form:Precautionary Principle in its

Environmental Versions

Principle 15 of the 1992 Rio Declaration of the United Nations Conference onEnvironment and Development (“UNCED”) provides:

“[i]n order to protect the environment, the precautionary approachshall be widely applied by States according to their capabilities. Wherethere are threats of serious or irreversible damage, lack of full scientific certaintyshall not be used as a reason for postponing cost-effective measures to preventenvironmental degradation.”1 (emphasis provided)

This restatement of the Precautionary Principle seems to be generally acceptedalthough more restrictive versions have been incorporated in various internationallegal instruments.2

Commentators accept that there are at least four elements to this principle.3

First, there must be appreciation of a degree and certainty of a danger that justifiesa regulatory response. Second, there must be some understanding of the certaintyof the perceived harm and the taking of a regulatory measure. Third, there must besome regulatory response. Finally, it is generally understood that this regulatoryresponse is provisional and may be subject to better certainty in the nature andcertainty of the risk and the effectivity of the measures that have so far been taken.

1 Rio Declaration on Environment and Development, Annex 1, principles, 15 U.N. Doc. A/CONF.151/5/Rev. 1(1992), reprinted in 31 I.L.M. 874, 879. Referred to as the Rio Declaration.

2 See for instance the reviews in Applegate, John S., The Taming of the Precautionary Principle, 27 Wm. andMary Environmental L. & Policy Rev. 13 (2002) and Sunstein, Cass R., “Beyond the Precautionary Principle,”Chicago Public Law and Theory Working Paper No. 38, January 2003

(available at http://www.law.uchicago.edu/academics/publiclaw/index.html last visited May 2006).

3 Applegate, note 2, at 18 to 20.

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The first element seems to suggest two dimensions. The body that takes aregulatory response must have some appreciation of the level of the seriousness ofthe harm. Furthermore, there must be acceptance of the quantity and quality of theinformation that provides the basis for the assessment of the possibility of occurrenceof such harm. The acceptance of seriousness of the harm – as opposed to the harmitself – is essentially subjective. The seriousness of losing a threatened bird specie isdifferent from establishing the fact that it is threatened. The seriousness of losingecosystems in favor of producing mineral wealth, perhaps in an economic sense, isdifferent from establishing the fact that mining does affect the environment.

The possibility of the harm happening may not be as subjective and may bethe subject of science and scientific methodology. It is basically a matter of riskassessment.

Risk is the “probabilistic likelihood of an unplanned, undesired or unwantedevent actually happening.”4 Risk assessment involves hypothesizing cause and effect,designing and implementing experiments or quasi-experiments that control for othervariables, measuring the results and mathematically quantifying the probabilities.Risk assessment therefore inherently involves scientific information, methodologiesand analysis. The quantity of scientific research on the same question will raisequestions relating to the replicability of the results and therefore would impact onthe quality of later analysis and proof of the original claim as to cause and effect.

Claims can be as simple as whether mature spotless apples carry bacteria causingfire blight or whether riding a motorcycle increases the chance of accidents to therider. It can be as complex as whether residues in food of specific growth hormonesartificially introduced in cattle have carcinogenic effect. In all these examples, onecan imagine the issues relating to whether there is enough science, how specific theywould be, the probabilities involved and how conclusive their findings. The challengefor policy makers therefore is less about how to assess but how people get informed,how to mitigate their impact and when the harm happens, how to apportion theliabilities.5 Risk assessment therefore is different from risk communication and riskmanagement. All these can involve science.

The second element of the precautionary principle involves an examinationof the possible effectivity of the mitigating measures. For instance, will wearing ahelmet reduce injuries in case of motorcycle accidents; will banning the importationof all apples from a state that has experienced fire blight really protect the statetaking this measure; and will banning the importation of all cattle from economiesthat allow the use of growth hormones reduce the possibility of contracting any kindof cancer.

4 Smith, S, Philipps, P.W.B., Kerr, W.A., and Khachatourians, G.G.

Regulating the Liabilities of Agricultural Biotechnology 9, (CABI Publishing, 2004).

5 See Smith et al. at note 4, 9.





Even with the use of the best available scientific information, there will alwaysbe the inherent uncertainty of both the risk and the effectivity of mitigating measures.The Precautionary Principle addresses and hopes to increase the tolerance foruncertainty for purposes of taking regulatory measures to address a perceived harmand its imminence.

The third element therefore requires the regulator to take a response. Thismay not always mean a prohibition against the human product or intervention.Depending on the quality of understanding and the degree of acceptance of therisk—the tolerance—there can be as many policy options as are creatively and politicallypossible. In other words, the precautionary principle does not sanction an attitudethat looks at any innovation with suspicion.6 At the very least, it declares thatuncertainty—even scientific uncertainty—should not be used as an excuse from takinga cost effective measure to address a perceived harm on the environment. In otherwords, it is indeed better to be safe than sorry.

The fourth element is implied from the principle. Since the measures aretaken on the basis of the best available information, or even none at all, it can beargued that further calibration of the response would have to follow betterinformation. Regulatory bodies may also learn from doing. Hence the process isiterative and the measures provisional.

The precautionary principle does not define the required seriousness of theharm, its probability of occurrence, the measures that are to be taken and the levelof certainty of the information on the basis of which they are taken. It does not alsodefine the processes that must be put in place to learn from the implementation ofthe measures and for the regulatory bodies to update themselves in terms of theinformation taken. Hence, it is quite vague and provides an approach rather thanclear directions to those who adopt it.

The Restricted Form:Precautionary Principle in the

WTO-SPS Version

The WTO’s Appellate Body has dealt with unilateral environmental measuresin the past that have an international impact.

In the United States—Shrimp/Turtle case, the body upheld a US regulation thatdisallowed the importation of shrimp without a certification coming from its Bureauof Agriculture that it was caught in a way that did not further endanger five threatenedspecies of turtles against a claim that the WTO regulations prevent “unilateral action.”

6 But see Cass, Sustein at note 2 where he argues that the precautionary principle in some of its versions do notmake sense because among others it assumes the benign nature of ecosystems while also assuming the pathogenicnature of any human intervention.

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The Appellate Body read article XX of the GATT as an exception to the disciplinesrequired in Article XI and article III. More specifically, it said that the GATT doesnot prohibit domestic measures that have an international effect when it “relates tothe conservation of exhaustible natural resources.”

However, noting the chapeau of article XX, it declared that the regulation wasnot WTO compliant as applied. Evidence showed that there was differentialtreatment in the compliance periods given to different member countries. TheAppellate Body also found that there was an implied requirement that turtle excluderdevices (TED) be used. It said that there were other relevant conforming means ofshrimp farming which seemed not to have been recognized by the US inspectors.Hence, it found this practice a disguised restriction to trade and an unjustifieddiscrimination against other shrimp farmers.

In the United States Shrimp/Turtle case, the effect of specific shrimp farmingmethods on the further decline in the population of threatened turtle species wasnot raised as an issue. There was therefore no need to examine the scientificjustification of this claim upon which the US measures were based.

In the EC Asbestos case, the WTO Appellate Body took cognizance of theenvironmental consequences of the use of a product as part of its physical characteristicin determining whether it was a like product within the context of Article III of theGATT. The measure in question was a ban of all asbestos products by France.Canada’s complaint was, among others, based on the alleged discriminatory treatmentbetween asbestos products and “like or directly substitutable goods” consisting ofinsulating material made in France. Since the carcinogenic potential of asbestosproducts had clear scientific basis, the Appellate Body ruled that although theeconomical utility of both products may be the same, it was considered different forpurposes of regulation under Article III Paragraph 4 of the GATT.

The scientific basis relating to the carcinogenic potential of asbestos does notseem to have been a grave issue in the EC Asbestos case.

Implicit in these decisions is that a regulatory measure may consist of a totalban in the sale or use of a product within a domestic setting. The WTO regulationstolerate these measures and do not evaluate them on the basis of the preferences inregulatory measure or level of protection chosen by a member State. Trade rulesseem to be agnostic to these environmental measures except when these constituteunjust discrimination of like products of a differing origin or would therefore be adisguised restriction to trade.





The SPS7 treaty clarify the limits of sanitary and phytosanitary8 measurestaken by a WTO member. To prevent the abuse of these measures, at least threeapproaches are taken. Abuse of course would result when there is a showing thatthere is an unjustified or arbitrary discrimination or when there is a showing thatthe measures are disguised restriction to trade.

First, the members have committed that all sanitary and phytosanitary measuresare to be established and maintained only with sufficient scientific justification.9

Second, the treaty allows international scrutiny with respect to whether there isdiscrimination among similar products.10 Third, members should not imposerestrictions on products of international origin that it would not impose on the sameproducts internally.11 This paper discusses in detail the first approach.

The Appellate Body in the Australian-Salmon case distinguished between thelevel of protection12 that a country chooses, the measures taken to achieve thatmeasure13, and the scientific justification on which these measures are based.

WTO Appellate Body cases affirm that the level of protection is still withinthe prerogative of a Member. This is principally based on the preamble14 and Article

7 Agreement on the Application of Sanitary and Phytosanitary Measures

8 SPS Treaty, Annex A, paragraph 1 defines sanitary or phytosanitary measure as “Any measure applied: (a) toprotect animal or plant life or health within the territory of the Member from risks arising from the entry,establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) toprotect human or animal life or health within the territory of the Member from risks arising from additives,contaminants, toxins or disease causing organisms in foods, beverages or feed stuffs; (c) to protect human lifeor health within the territory of the Member from risks arising from disease carried by animals, plants orproducts thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damagewithin the territory of the Member from the entry, establishment or spread of pests.”

9 SPS Treaty, article 2, paragraph 2: “Members shall ensure that any sanitary or phytosanitary measure is appliedonly to the extent necessary to protect human, animal or plant life or health, is based on scientific principles andis not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of article 5.”

10 SPS Treaty, article 5, paragraph 5: “With the objective of achieving consistency in the application of the conceptof appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animaland plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considersto be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction oninternational trade.”

11 SPS Treaty, article 5, paragraph 6: “Without prejudice to paragraph 2, article 3, when establishing or maintainingsanitary or phystosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection,Members shall ensure that such measures are not more trade restrictive than required to achieve their appropriatelevel of sanitary or phytosanitary protection, taking into account technical and economic feasibility.

12 SPS Treaty, Annex A, paragraph 5 refers to this as both the “appropriate level of sanitary or phytosanitaryprotection” and is the same as “acceptable level of risk.”

13 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 20 October 1999, para. 200. The definition of “measures” are quite broad. In this case, it was used as a term foran instrument chosen by a state to attain or implement an objective.

14 SPS Treaty, first preambular clause: “Reaffirming that no Member should be prevented from adopting orenforcing measures necessary to protect human, animal or plant life or health, subject to the requirement thatthese measures are not applied in a manner which would constitute a means of arbitrary or unjustifiablediscrimination between members where the same conditions prevail or a disguised restriction on internationaltrade.

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2, Paragraph 115 of the SPS treaty. However, the level of protection must now beexplicitly stated by the state imposing the measure. It should not simply be impliedand thus derived by a dispute panel on the basis of the measures that are beforethem.

The requirement of a risk assessment in Article 5, Paragraph 116 is seen as asupplement and an amplification of the requirement that sanitary and phytosanitarymeasures cannot be established and maintained without adequate scientificjustification.17 Risk assessments are defined in Paragraph 4, Annex A of theAgreement as:

“Risk Assessment - The evaluation of the likelihood of entry,establishment or spread of a pest or disease within theterritory of an importing Member according to the sanitaryor phytosanitary measures which might be applied, and ofthe associated potential biological and economicconsequences; or the evaluation of the potential for adverseeffects on human or animal health arising from the presenceof additives, contaminants, toxins or disease-causingorganisms in food, beverages or feedstuffs.”

Traditionally, the provision is interpreted to refer to two types of riskassessment: one involving the “entry, establishment or spread of a pest or disease,”and the other to the effects on health from “the presence of additives, contaminants,toxins or disease-causing organisms in food, beverages or feedstuffs.”

In the Australia—Salmon18 case and for the first type of risk assessment, thisprovision was interpreted to require that the member must: (1) identify the diseaseor the adverse effect as well as the potential biological and economic consequencesassociated with the disease; (2) evaluate the likelihood of entry, establishment orspread of the disease; and (3) evaluate the likelihood of entry, establishment orspread of the disease according to the measure adopted. In addition, the memberadopting the measure should be clear with respect to the desired level of protection.

15 SPS Treaty, article 2, paragraph 1: “Members have the right to take sanitary or phytosanitary measuresnecessary for the protection of human, animal or plant life or health, provided that such measures are notinconsistent with the provisions of this agreement.”

16 SPS Treaty, article 5, paragraph 1: “Members shall ensure that their sanitary or phytosanitary measures arebased on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life orhealth, taking into account risk assessment techniques developed by the relevant international organizations.”

17 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, supra footnote 19, at para. 130.

18 Ibid., at para.121.





To be “based on a risk assessment” requires having an “objective logicalrelationship” between the measures imposed and the risks involved.19 This doesnot mean that there must be a showing, that regulatory bodies have subjectivelytaken the prior scientific studies into consideration before enacting the measure.20

It does not even require that the regulatory body did the scientific studies.21 Itsuffices that these studies exist and that there is some relationship to the measurestaken. In fact, a member taking a measure may rely on the studies done by anothermember country.22

The precautionary principle is seen as an exception to the first requirementand is triggered only when the scientific evidence is insufficient.23 Thus in EC—MeatHormones, the Appellate Body declared:

The status of the precautionary principle in internationallaw continues to be the subject of debate among academics,law practitioners, regulators and judges. The precautionaryprinciple is regarded by some as having crystallized into ageneral principle of customary international environmental law.Whether it has been widely accepted by Members as aprinciple of general or customary international law appears lessthan clear. We consider, however, that it is unnecessary, andprobably imprudent, for the Appellate Body in this appealto take a position on this important, but abstract, question…

“It appears to us important, nevertheless, to note someaspects of the relationship of the precautionary principle tothe SPS Agreement. First, the principle has not been writteninto the SPS Agreement as a ground for justifying SPS measuresthat are otherwise inconsistent with the obligations ofMembers set out in particular provisions of that Agreement.

19 See Appellate Body Report, EC – Measures Concerning Meat and Meat Products (Hormones),

WT/DS26/B/R, WT/DS48/AB/R, adopted on 16 January 1998, para. 189; Appellate Body Report, Australia– Measures Affecting Importation of Salmon, supra, footnote 19, at para. 123.

20 Ibid.

21 Ibid., at para.190.

22 SPS Treaty, article 9, paragraph 1: “Members agree to facilitate the provision of technical assistance to otherMembers, especially developing country Members, either bilaterally or through the appropriate internationalorganizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure,including in the establishment of national regulatory bodies, and may take the form of advice, credits, donationsand grants, including for the purpose of seeking technical expertise, training and equipment to allow suchcountries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriatelevel of sanitary or phytosanitary protection in their export markets.”

23 SPS Treaty, article 5, paragraph 7: “In cases where relevant scientific evidence is insufficient, a Member mayprovisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, includingthat from the relevant international organization as well as from sanitary or phytosanitary measures applied byother Members. In such circumstances, Members shall seek to obtain the additional information necessary fora more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within areasonable period of time.”

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Secondly, the precautionary principle indeed finds reflectionin Article 5.7 of the SPS Agreement. We agree, at the sametime, with the European Communities, that there is no needto assume that Article 5.7 exhausts the relevance of aprecautionary principle. It is reflected also in the sixthparagraph of the preamble and in Article 3.3. Theseexplicitly recognize the right of Members to establish theirown appropriate level of sanitary protection, which level maybe higher (i.e., more cautious) than that implied in existinginternational standards, guidelines and recommendations.Thirdly, a panel charged with determining, for instance,whether “sufficient scientific evidence” exists to warrant themaintenance by a Member of a particular SPS measure may,of course, and should, bear in mind that responsible,representative governments commonly act from perspectivesof prudence and precaution where risks of irreversible, e.g.life-terminating, damage to human health are concerned.Lastly, however, the precautionary principle does not, byitself, and without a clear textual directive to that effect,relieve a panel from the duty of applying the normal (i.e.customary international law) principles of treatyinterpretation in reading the provisions of the SPS Agreement.”

Interestingly, in interpreting Article 11 of the Dispute SettlementUnderstanding (DSU), the Appellate Body has consistently held that the standard ofreview that panels can take when examining compliance with the requirements ofthe SPS is neither of two extremes. It is not always a “de novo” review. Neitherdoes it always imply a “deferential” attitude towards the evaluation of made by aparty to a dispute.

“De novo” review implies that a dispute panel disregards the scientific claimsand evaluation made by both parties and conducts its own inquiry into the matter. A“reasonable deferential” attitude on the other hand means that the panel will notconduct its own inquiry and simply depend upon the evaluation of the parties to thedispute. Consistently, the Appellate Body has declared that the panel has thediscretion to determine the sufficiency of the claims made by the parties either byitself, through the employment of individual experts or the creation of expert workinggroups. In other words, the sufficiency of the scientific analysis and the conclusionsmade from various studies is left to the discretion of the panel. The panel also hasthe discretion to determine whether in fact, the scientific information is “insufficient”for purposes of Article 5 Paragraph 7 of the SPS treaty.





Conclusion

The current content of the SPS Treaty within the WTO Agreements definitelydefines the regulatory space for its members, at least with respect to measures thataffect importation of goods and services coming from outside their borders. In asense, the principle limits the sovereign options of governments, encourages themto increasingly deal with multilateral international organizations concerned with theformulation of minimum sanitary and phytosanitary standards and encourages theuse of more science in mandatory risk assessments on which to base these measures.In the formulation of these minimum standards, states expectedly would use thelatest scientific research and analysis to support their proposals.

On an international level, the WTO Appellate Body has contributed to theclarification of the precautionary principle. Whether this clarity will contribute tosanitary or phytosanitary measures that are more objectively based on “scientificprinciples” or may further weaken the ability of smaller developing member statesas against developed member economies or the transnational corporations with hugeresearch budgets however remains to be seen.

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Merlin M. Magallona

Revised Code of Corporate

Governance:

A REACTIONARY APPROACH*

Cesar L. Villanueva**

On July 15 2009, the REVISED CODE OF CORPORATE GOVERNANCE1 (the

“Revised CG Code”) came into effect to replace the 2002-vintage SEC Code of

Corporate Governance2 (the “original SEC Code”). The use of the term “Revised”in its title is meant to indicate that the Revised CG Code is primarily based on theexisting structure and provisions of the original SEC Code, and therefore, thesignificance of the additions, deletions, changes and amendments contained in theRevised CG Code are supposed to take their real significance by way of comparisonwith the provisions of the original SEC Code.

The Revised CG Code is supposedly the result of lobbying efforts from boththe Philippine Stock Exchange (PSE) and the Institute of Corporate Directors (ICD)to incorporate reforms in the original SEC Code coming from hard lessons learnedby directors and officers of covered corporations, as well as from the invaluableexperiences of corporate governance practitioners under the regime of the originalSEC Code. Our review of the Revised CG Code, and the initial feedback receivedfrom the field, is, to say the least, one of disappointment — Sayang!

The feeling that one is left with after reading the Revised CG Code is that thegreat experiment of ushering into our jurisdiction modern corporate governanceprinciples and practices has abruptly come to an end; and that we in the Philippinesare retreating back to old, familiar grounds — the governance principles espousedunder the century-old principles embodied in the Corporation Code. Indeed, whatstand out from the provisions of the Revised CG Code are not what new cutting-edge concepts or provisions were introduced, but rather what seminal provisionshave been taken out from the provisions of the original SEC Code.

* The discussions contained in this paper are better appreciated when read in connection with the author’s bookTHE LAW AND PRACTICE ON: PHILIPPINE CORPORATE GOVERNANCE (Holy Angel University Press, 2009),and is issued formally as a supplement to said publication.

** Dean of the Ateneo de Manila School of Law, Professorial Lecturer in Corporation Law and Sales; SeniorPartner, Villanueva Gabionza & De Santos Law Offices.

1 SEC Memorandum Circular No. 6, series of 2009.

2 SEC Memorandum Circular No. 2, series of 2002.


Revised Code of Corporate Governance: A REACTIONARY APPROACH

Coverage of the Revised CG Code

The covered corporations under the Revised CG Code seem to be the same asthose covered in the original SEC Code, which originally read as follows: “this Code. . . shall be applicable to corporations whose securities are registered or listed,corporations which are grantees of permits/licenses and secondary franchise fromthe Commission and public companies. This Code also applies to branches orsubsidiaries of foreign corporations operating in the Philippines whose securitiesare registered or listed.”

The original SEC Code then separately defined “public companies” to mean“any corporation with a class of equity securities listed in an Exchange or with assetsin excess of Fifty Million Pesos (P50,000,000.00) and having two hundred (200) ormore stockholders each holding at least one hundred (100) shares of a class of itssecurities.” The original SEC Code covered the following sets of “coveredcorporations,” thus:

(a) Corporations whose securities are registered or listed, which includesthe branches or subsidiaries of foreign corporations operating in thePhilippines whose securities are registered or listed;

(b) Public companies, i.e., those with assets in excess of Php50.0 Million,with at least 200 stockholders who own at least 100 shares of a classof its securities;

(c) Corporations which are grantees of permits/licenses and secondaryfranchise from the SEC.

which meant that the principles of corporate governance are made to apply, not toall corporations, but only those — which for lack of a better term, — we have dubbedas “public companies” and by reason of which the impact of their business enterpriseson the public are deemed to be vested with a certain degree of “public interest”beyond those of their shareholders. It is the fact that the business of a public companyaffects not only the shareholders, but other components of the market or society, bywhich the principles of the Stakeholder Theory are intended to apply.

The coverage clause of the Revised CG Code seems to have expanded thecoverage of what are within “covered corporations” when it embedded the definitionof “public companies” within said coverage clause, which now reads as follows:

. . . this Revised Code of Corporate Governance . . . shall apply to registeredcorporations and to branches or subsidiaries of foreign corporationsoperating in the Philippines that (a) sell equity and/or debt securities tothe public that are required to be registered with the Commission, or (b)have assets in excess of Fifty Million Pesos and at least two hundred(200) stockholders who own at least one hundred (100) shares each of

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Cesar L. Villanueva

equity securities, or (c) whose equity securities are listed on an Exchange;or (d) are grantees of secondary licenses from the Commission.3

which seems to indicate that even “branches or subsidiaries of foreign corporationsoperating in the Philippines that . . . have assets in excess of Fifty Million Pesos andat least two hundred (200) stockholders who own at least one hundred (100) shareseach of equity securities,” are covered by our Revised CG Code, even when they donot sell equity and/or debt securities in the Philippines required to be registeredwith the SEC, or even when they have not listed any equity securities on an Exchange.This would include large American and European corporations having establishedbranches or subsidiaries in the Philippines.

Likewise, the sequencing seems to imply that the branches and subsidiaries offoreign corporations operating in the Philippines which “are grantees of secondarylicenses from the Commission” are also covered by the mandatory provisions of theRevised CG Code. This would mean all branches of foreign corporations are coveredsince all such branches have been issued licenses to do business in the Philippines bythe SEC. By virtue of their local operations in the Philippines, foreign companieswould have to implement the provisions of the Revised CG Code to matters that arehappening in their headquarters, since that is where the Boards and Management offoreign companies are located.

We believe that as correctly enumerated under the original SEC Code, it isonly in “branches or subsidiaries of foreign corporations operating in the Philippineswhose securities are registered or listed,” where the provisions of the Revised CGCode should apply. This is an important consideration to keep in mind, since theRevised CG Code has imposed a heftier and more encompassive penalty for violationof its provisions, when compared to the original SEC Code.

Finally, because the Revised CG Code has retained within its coverage thosecompanies which “are grantees of secondary licenses from the Commission,” then itmust stand to reason that the exclusive enumeration of those falling within thiscategory under SEC Memorandum Circular No. 16, s. 2002,4 still applies, namely:(a) finance companies; (b) investment houses; (c) brokers and dealers of securities;(d) investments companies; (e) pre-need companies; (f) stock and other securitiesexchanges.

The point being made is that by retaining the coverage of the principles ofcorporate governance to public companies, or at least by expressly stating that itsmandatory provisions are applicable only to “covered corporations” (“All coveredcorporations shall establish and implement their corporate governance rules inaccordance with this Code”), the Revised CG Code is making it clear that it recognizesthe public interests that pertain to covered corporations, as distinguished from all

3 Opening paragraph, Revised CG Code.

4 Guidelines on the Nomination and Election of Independent Directors.



other private and non-public companies whose business enterprises do not affectpublic interest, or whose business enterprises only affect private interests, mainlytheir stockholders.

Abandonment of the “Stakeholder Theory”

What is truly astounding in the Revised CG Code is the dropping of all referenceto “stakeholders” and the “Stakeholder Theory.”

The primary issue that ought to be settled with the coming into effect of theRevised CG Code is the obvious question – “Has there been an abandonment of theStakeholder Theory, and a return to the near-exclusive application of the doctrine of maximizationof shareholders’ value?”

1. Deletion of All Reference to “Stakeholders”

Under the original SEC Code, the term “Corporate Governance” was defined toembody the Stakeholder Theory, thus —

B. CORPORATE GOVERNANCE – REFERS TO A SYSTEM WHEREBY

SHAREHOLDERS, CREDITORS AND OTHER STAKEHOLDERS OF A

CORPORATION ENSURE THAT MANAGEMENT ENHANCES THE

VALUE OF THE CORPORATION AS IT COMPETES IN AN

INCREASINGLY GLOBAL MARKET PLACE.5

The recognition that it was not only the shareholders of a public company, butalso “creditors and other stakeholders” as having legal and business standing to “ensurethat management enhances the value of the corporation,” officially ushered within theinstitution of Philippine public companies the Stakeholder Theory or the theory ofenhancing the value of the corporation on a long-term basis for the benefit of allthose affected by its business enterprise, as distinguished from the Shareholder Theoryor the doctrine of maximization of shareholder value.

The Revised CG Code has switched to a process-driven definition similar tothat found in the IC Code of Corporate Governance Principles and Leading Practices,6

but which in addition limits the coverage only to “stockholders” thus, —

5 Sec. I(B), original SEC Code of Corporate Governance; reformatted and with emphasis supplied.

6 IC Circular No. 31-2005, 26 September 2005, which defines “Corporate Governance” under Sec. I(1) asfollows: “the system by which companies are directed and managed. It influences how the objectives of thecompany are set and achieved, how risk is monitored and assessed, and how performance is optimized.”

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A) CORPORATE GOVERNANCE – THE FRAMEWORK OF RULES,

SYSTEMS AND PROCESSES IN THE CORPORATION THAT

GOVERNS THE PERFORMANCE BY THE BOARD OF DIRECTORS

AND MANAGEMENT OF THEIR RESPECTIVE DUTIES AND

RESPONSIBILITIES TO THE STOCKHOLDERS.7

Whereas the IC Code specifically refers and defines “stakeholders” to includenot only stockholders, but also “to the group of company owners, officers andemployees, policyholders, suppliers, creditors and the community,”8 the RevisedCG Code has opted to drop every reference to “stakeholders” found in the originalSEC Code.

Thus, the provision under “General Responsibility” of Directors of coveredcorporations under the original SEC Code which provided that “a director assumescertain responsibilities to different constituencies or stakeholders, who have the right to expect thatthe institution is being run in a prudent and sound manner,”9 has been entirely deleted in theRevised CG Code. The immediately quoted provision had been lifted by the SECdirectly from BSP Circular No. 318, series of 2001, and we have also criticized itsformal adoption into the original SEC Code as being rather dangerous because itought to apply only to stakeholders of companies that hold the investments andsavings of the public (such as banks and insurance companies). However, the deletionin the Revised CG Code may be interpreted to mean that only shareholders havestanding with respect to the business operations of covered companies, as the newprovision now reads:

1. GENERAL RESPONSIBILITY

IT IS THE BOARD’S RESPONSIBILITY TO FOSTER THE LONG-TERM SUCCESS OF THE CORPORATION, AND TO SUSTAIN ITS

COMPETITIVENESS AND PROFITABILITY IN A MANNER

CONSISTENT WITH ITS CORPORATE OBJECTIVES AND THE

BEST INTEREST OF ITS STOCKHOLDERS. x x x.10

The use of the term “to foster the long-term success of the corporation,” which normallywould have the same value and meaning as “enhancing the value of the corporation,” isone of the hallmarks of the stakeholder theory to focus Board and Managementefforts toward long-term goals that protect the interests of all, if not moststakeholders, rather than the short-term seeking of profits which only enhances theinterests of current shareholders, as they trade their shareholdings in the stock

7 Reformatted and with emphasis supplied.

8 Sec. I(18), IC Code of Corporate Governance Principles and Leading Practices.

9 Sec. II(5)(a), original SEC Code of Corporate Governance.

10 Article 2(F)(1), Revised CG Code; reformatted and with emphasis supplied.



market. The context of the afore-quoted provision that juxtaposes the “long-termsuccess of the corporation” only in line with “the best interest of its stockholders” may beinterpreted to mean an abandonment of the stakeholders theory under the RevisedCG Code, and a return to the much narrow path offered by the maximization ofshareholders’ equity as the only object of corporate governance.

Furthermore, under Section II(5)(b) of the original SEC Code (on “Duties andFunctions of the Board”) which provided that “to insure a high standard of bestpractice for the company and its stakeholders, the Board should conduct itself withutmost honesty and integrity in the discharge of its duties, functions andresponsibilities,”11 the current Article 2(F)(2) of the Revised CG Code has limitedsuch duties and functions only “for the corporation and its stockholders.”12 Therevision effected under the Revised CG Code may be taken to mean that it is thecurrent position of the SEC that the duties and functions of the Board of coveredcorporations, as well as their fiduciary obligations, now pertain solely to the companyand its shareholders, a complete abandonment of the Stakeholder Theory.

The duty imposed upon the Board of Directors of covered corporations underSection II(5)(b) of the original SEC Code to identify their stakeholders and the dutyof accounting owed to them, thus —

IV. IDENTIFY THE CORPORATION’S MAJOR AND OTHER STAKEHOLDERS AND

FORMULATE A CLEAR POLICY ON COMMUNICATING OR RELATING WITH

THEM ACCURATELY, EFFECTIVELY AND SUFFICIENTLY. THERE MUST BE

AN ACCOUNTING RENDERED TO THEM REGULARLY IN ORDER TO SERVE THEIR

LEGITIMATE INTERESTS.13

has now been rendered to be merely a communication process under Article 2(F)(2)of the Revised CG Code to cover only the following:

. . . IDENTIFY THE SECTORS IN THE COMMUNITY IN WHICH THE CORPORATION

OPERATES OR ARE DIRECTLY AFFECTED BY ITS OPERATIONS, AND FORMULATE A

CLEAR POLICY OF ACCURATE, TIMELY AND EFFECTIVE COMMUNICATION

WITH THEM.14

and clearly avoids the use of the term “stakeholders.”

The duty imposed on the Corporate Secretary of a covered corporation underSection II(9) of the original SEC Code is that “he should work and deal fairly andobjectively with all the constituencies of the corporation, namely, the Board,management, stockholders and other stakeholders. As such, he should be someonehis colleagues and these constituencies can turn to, trust and confide with on a regular

11 Emphasis supplied.


13 Reformatted and emphasis supplied.

14 Reformatted and emphasis supplied.

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basis,”15 has been limited under Article 2(L) of the Revised CG Code only to theduty to “work fairly and objectively with the Board, Management and stockholders.”

The provision under Section IV (Accountability and Audit) under the originalSEC Code, referring to the Board’s obligation to stakeholders to —

D. MAINTAIN A SOUND SYSTEM OF INTERNAL CONTROL TO

SAFEGUARD STAKEHOLDERS’ INVESTMENT AND THE COMPANY’SASSETS;16

has effectively been replaced in the Revised CG Code with the provision that reads:

Management should formulate, under the supervision of

the Audit Committee, the rules and procedures on financial

reporting and internal control in accordance with the

following guidelines:

x x x

(ii) An effective system of internal control that will ensure

the integrity of the financial reports and protection of the

assets of the corporation should be maintained.

x x x.17

Finally, the provision of Section IV (on “Disclosure and Transparency”) of theoriginal SEC Code that —

THE BOARD SHALL THEREFORE, COMMIT AT ALL TIMES TO FULL

DISCLOSURE OF MATERIAL INFORMATION DEALINGS. IT SHALL CAUSE

THE FILING OF ALL REQUIRED INFORMATION FOR THE INTEREST OF THE

STAKEHOLDERS.18

has been entirely deleted in the Revised CG Code.

All the foregoing indicate that the Revised SEC Code has taken a “rejectiontone” of the Stakeholder Theory, and one may be led to the conclusion that has seenour Supreme Court holding that in the realm of Philippine Corporation Law, theBoard of Directors and Management of every corporation owe fiduciary duties tothe stockholders, and their main obligation is “to seek the maximum amount ofprofits for the corporation.”19



17 Reformatted.


19 Premium White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103 (1993).



2. Has the Stakeholders Theory Been Formally Rejected in Philippine

Jurisdiction?

On the broad issue of whether the Stakeholder Theory no longer has any formalapplication in Philippine jurisdiction, the answer is easier to give: “Definitely not!”

It must be recalled that it was not the SEC that ushered the Stakeholder Theoryin the Philippines with the promulgation of the original SEC Code, but rather theBangko Sentral ng Pilipinas (BSP), with the promulgation a year earlier of a series ofcirculars, starting with BSP Circular No. 283, series of 2001, that defined who thestakeholders are in banking institutions and requiring of such institutions, theirBoard and Management, to exercise a high degree of diligence, and not just thediligence of a prudent man. The Supreme Court has, for more than a decade beforethe issuance of the BSP Circulars on Corporate Governance, characterized bankinginstitutions as being “vested with public interest,” requiring of them, their Boards ofDirectors and officers, the exercise of diligence of the highest order, not only totheir stockholders, but primarily to their clients, depositors and members of thepublic who deal with their facilities.

In addition, the IC Code of Corporate Governance Principles and LeadingPractices, formally recognizes that the “insurance business is imbued with publicinterest,”20 and that “as a custodian (sic) of public funds, insurance corporations andinsurance intermediaries shall ensure that their dealings with the public are alwaysconducted in a fair, honest, and equitable manner.”21 These principles adhere to theStakeholder Theory.

There is no doubt that the Stakeholder Theory, as a cornerstone of the regimeof corporate governance, is very much alive and well for the key banking andinsurance sectors of the Philippine capital market.

With the promulgation of the Revised CG Code, do we then take it that in allother public companies, other than banking institutions, insurance companies, andinsurance intermediaries, the Stakeholder Theory is thereby rejected as the capstoneof corporate governance, with the affirmation that the maximization of shareholders’value becomes once again the rule of thumb in measuring the duties, responsibilitiesand extent of personal liability of directors and officers of covered corporations?

It must be stated formally that with the clear dropping of the StakeholderTheory from the definition of Corporate Governance, and dropping of all references tostakeholders under the Revised CG Code, there is a strong argument before courtsof law that the Stakeholder Theory as the legal basis of accountability for directorsand officers of covered companies (except for banks, insurance companies and

20 Sec. II(B)(4), IC Code of Corporate Governance.

21 Sec. V, IC Code of Corporate Governance.

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insurance intermediaries) can no longer be made to apply; and that “a director of acorporation holds a position of trust and as such, he owes a duty of loyalty to hiscorporation. . . As corporate managers, directors are committed to seek the maximumamount of profits for the corporation.”22

Nevertheless, it is our proposition that notwithstanding the substantial changeseffected in the Revised CG Code, the application of the Stakeholder Theory as acornerstone to determine the nature and extent of the duties, responsibilities, aswell as the personal liabilities of directors and officers of all public companies,continues to be a viable doctrine.

Firstly, the official and unofficial pronouncements coming out of the responsibleofficers of the SEC do not indicate that they are pursuing a new corporate governanceregime that rejects the Stakeholder Theory. Commissioner Raul J. Palabrica (who iscredited to be the main author behind the revisions), writes in his column that thecoverage of the Revised CG Code continues to be the same as under the originalSEC Code, and that —

The common denominator of these companies is they solicitinvestments from the public to help sustain their operation. Hence, theiractivities are considered imbued with public interest.

The code consists of compulsory and recommendatory guidelinesfor the protection of the interests of the stockholders and other investorsof covered companies.23

In other words, the coverage of the Revised CG Code for public companiescontinues to acknowledge that it is the nature of the business enterprises of thecovered companies (and not just their corporate medium) that imbues them withpublic interest. This confirms that it is not just the shareholders who fall withinstrictly intra-corporate relationships and are affected by the operations of the publiccompanies, but also those who have invested in the companies in some other form(such as the case of policy holders, depositors, etc.), who receive protection under astricter corporate governance regime. This is affirmed in Article 2 of the RevisedCG Code, which provides as part of the “Rules of Interpretation” that —

B) ALL DOUBTS OR QUESTIONS THAT MAY ARISE IN THE INTERPRETATION

OR APPLICATION OF THIS CODE SHALL BE RESOLVED IN FAVOR OF

PROMOTING TRANSPARENCY, ACCOUNTABILITY AND FAIRNESS TO THE

STOCKHOLDERS AND INVESTORS OF THE CORPORATION.24

The only problem created by the total dropping of the Stakeholder Theoryunder the provisions of the Revised CG Code is that it has effectively limited the

22 Prime White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103, 110-111 (1993).

23 Philippine Daily Inquirer, 03 July 2009, at p. B5; emphasis supplied.




coverage of “stakeholders” to those who have direct “investments” in publiccompanies, similar to the financial involvement of stockholders, such as the case ofdepositors and other debt-holders of banking institutions, policy holders and debt-holders of insurance companies, and plan-holders of pre-need companies. All otherstakeholders who do not have a direct financial investment in the companies, suchas management and employees, customers, the community site, etc., are deemed tohave no direct interest in the corporate enterprise, and the only manner by whichthey can sustain a legal standing as stakeholders is to prove that they pertain to the“public interest” coverage of the particular covered corporation upon which theyseek to demand compliance with corporate governance principles.

The net result of the revision effected under the Revised CG Code is toeffectively narrow the coverage of who can claim to be stakeholders of a publiccompany, to a commercial end — that the directors and officers of a public companyowe a special duty to stockholders and other similar investors in the company tomaximize profits for the long-term success of the corporation.

Secondly, the revisions effected by the SEC under the final terms of the RevisedCG Code may be taken to mean that the SEC has dropped all reference tostakeholders, not as a rejection of the Stakeholder Theory, but rather as a recognitionthat primary jurisdiction over the covered corporations pertains primarily to thecorporate medium and the legal relationship that is created (i.e., the intra-corporaterelationship); and that the underlying business enterprise is not for the SEC tosupervise, but by the proper government agency so tasked under its charter.

For example, although all banks and insurance companies can only be operatedunder a corporate medium, nevertheless, their underlying operations are primarilyunder the control and/or supervision not by the SEC, but by the BSP and the IC,respectively. It may be reckoned therefore that with the current version of the RevisedCG Code, the SEC has taken the position that it is the government agency taskedwith control and/or supervision of the industry that it is rightly vested with power,and obviously it is in the best position to define the terms of the Stakeholder Theoryand determine those who are deemed to fall with the coverage of stakeholders.

In other words, the SEC has defined the meaning and coverage of “CorporateGovernance” under the Revised CG Code within the parameters that are clearly withinits administrative jurisdiction, i.e., within the intra-corporate relationships of everycovered corporation:

(a) Between the SEC and the company, represented by its Board of Directors;(b) Between the Board of Directors and the stockholders;(c) Between the Board of Directors and Management.

Within the realm of its special administrative jurisdiction, the SEC has, throughthe Revised CG Code, defined the meaning and essence of Corporate Governancefor public companies in the manner and term it knows best — the maximization of

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shareholders’ value: “Corporate Governance – the framework of rules, systems andprocesses in the corporation that governs the performance by the Board of Directorsand Management of their respective duties and responsibilities to the stockholders.”25

It has described the General Responsibility of the Boards of Directors of coveredcorporations within such parameters: “It is the Board’s responsibilities to foster thelong-term success of the corporation, and to sustain its competitiveness andprofitability in a manner consistent with its corporate objectives and the best interestsof its stockholders.”26

The terms of the Revised CG Code indicate that the code recognizes, apartfrom the stockholders of covered corporations, other stakeholders similarly situated— investors, in line with its recognition that under the Securities Regulation Code(SRC), it is the government agency that has been given direct supervision over publiccompanies, for the protection of stockholders and other debt- and securities-holders,thus —

� “All doubts or questions that may arise in the interpretation orapplication of this Code shall be resolved in favor of promotingtransparency, accountability and fairness to the stockholders andinvestors of the corporation;”27

� “To ensure a high standard of best practice for the corporation andits stockholders, the Board should conduct itself with honesty andintegrity in the performance of, among others, the following dutiesand functions: x x x Establish and maintain an investor relationsprogram that will keep the stockholders informed of importantdevelopments in the corporation. If feasible, the corporation’s CEOor chief financial officer shall exercise oversight responsibility overthis program.”28

The point being made is that the formal dropping of the Stakeholder Theory under

the Revised CG Code should not be construed to mean that the SEC, as the supervising

agency over all corporations in the Philippines, has rejected its application in our

jurisdiction, but that it leaves it to the best judgment of the proper government agency of

the particular industry or business sectors having jurisdiction to define the nature and

extent of how they wish to adopt such theory. As the SEC has defined principles of Corporate

Governance within the medium of public companies to cover the duties and obligations

of the Board of Directors and Management to mean the maximization of the value of the

investments of shareholders and other investors, so therefore other agencies, such as the

BSP and the IC, have the right to so define the parameters of what constitute good corporate

25 Art. 1(a), Revised CG Code.

26 Art. 3(F)(1), Revised CG Code.

27 Art. 2(B) (on “Rules of Interpretation”), Revised CG Code.

28 Art. 3(F)(2), Revised CG Code.



governance within their industries and sectors that best suit the Stakeholder Theoryto their own specific circumstances.

This approach — that the corporate medium, apart from the underlying businessenterprise, is not deemed to be vested with public interest beyond those that have aformal or commercial tie to it by way of equity or debt investment — seems to be inconformity with the SEC’s mandate contained in its sub-charter, namely PresidentialDecree No. 902-A, which holds that:

WHEREAS, in line with the government’s policy of

encouraging investments, both domestic and foreign, and more

active public participation in the affairs of private corporations

and enterprises through which desirable activities may be

pursued for the promotion of economic development; and, to

promote a wider and more meaningful equitable distribution

of wealth, there is a need for an agency of the government to

be invested with ample powers to protect such investment (sic)

and the public;

WHEREAS, to achieve these national objectives, it is necessary toreorganize and restructure the Securities and Exchange Commission tomake it a more potent, responsive and effective arm of the governmentto help in the implementation of these programs and to play a moreactive role in nation-building;

It also means that the SEC has retreated (when compared to its original stanceunder the original SEC Code) from a positive role as the government agency thatcould imbue the corporate medium with the constitutional precept that although werecognize the institution of private ownership and property rights and “theindispensable role of the private sector,”29 we nevertheless declare that property“bears a social function, and all economic agents shall contribute to the commongood,” and always “subject to the duty of the State to promote distributive justiceand to intervene when the common good so demands.”30

Thirdly, and perhaps the more important aspect when it comes to corporatepractitioners and their clientele, is that apart from the language of the original SEC Code,the Supreme Court has in the field of jurisprudence, began to craft a doctrine of“Corporate Responsibility” that recognizes the existence of the duties and obligations ofcorporations, their Boards and Management, to sectors of society (apart from theirshareholders) who are affected by their operations.

Fairly recently, in Professional Services, Inc. v. Court of Appeals,31 the Supreme Courtheld a hospital corporation liable for the medical malpractice or professional

29 Sec. 20, Art. II, 1987 Constitution.

30 Sec. 6, Art. XII, 1987 Constitution.

31 544 SCRA 170, 182 (2008).

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negligence of a physician who was a member of its medical staff, thus —

The challenged Decision also anchors its ruling on the doctrine of

corporate responsibility. The duty of providing quality medical serviceis no longer the sole prerogative and responsibility of the physician. Thisis because the modern hospital now tends to organize a highly-

professional medical staff whose competence and performance needalso to be monitored by the hospital commensurate with its inherentresponsibility to provide quality medical care. Such responsibility

includes the proper supervision of the members of its medical

staff. Accordingly, the hospital has the duty to make a reasonable

effort to monitor and oversee the treatment prescribed and

administered by the physicians practicing in its premises.32

Unfortunately, the term doctrine of corporate responsibility was used in ProfessionalServices, Inc., to mean “corporate negligence doctrine . . . These special tort dutiesarise from the special relationship existing between a hospital or nursing home andits patients, which are based on the vulnerability of the physically or mentally illpersons and their inability to provide care for themselves.”33 And that is the essenceof what is wrong under the regime of the Revised SEC Code: the Stakeholder Theoryembodied in the original SEC Code was put to death too young in its life, evenbefore it could be properly treated and allowed to bloom under Philippine corporatejurisprudence!

In our book on Corporate Governance, we have discussed at length theshortcomings of the Stakeholder Theory and the pitfalls that faced the SEC in adoptingit formally, but I certainly had not advocated its deletion. In a developing countrylike ours where the majority of the resources available to our people are in thehands of corporate entities (and also in the hands of government corporations), thegreat challenge was, and continues to be, that of evolving a doctrine that imbues thecorporate medium with the “burden of a social function, and as an economic agent whichshould contribute to the common good.”

With the SEC retreating from that challenge under the Revised SEC Code,the great social experiment in imbuing Philippine public companies with a socialfunction that goes beyond the interests of their investors has been orphaned intothe other fields outside of Philippine Corporate Law. And I always thought that theessence of “Corporate Governance” was in the term “corporate.”

32 Ibid, at p. 182.

33 Ibid, at p. 182, footnote 7.



System of “Independent Directors”

Article 3(A) of the Revised CG Code strengthens the system of independentdirectors for Philippine public companies, as it provides that —

ALL COMPANIES COVERED BY THIS CODE SHALL HAVE AT LEAST TWO

(2) INDEPENDENT DIRECTORS OR SUCH NUMBER OF INDEPENDENT

DIRECTORS THAT CONSTITUTES TWENTY PERCENT (20%) OF THE

MEMBERS OF THE BOARD, WHICHEVER IS LESSER, BUT IN NO CASE

LESS THAN TWO (2). ALL OTHER COMPANIES ARE ENCOURAGED TO

HAVE INDEPENDENT DIRECTORS IN THEIR BOARDS.34

In Philippine Corporate Law, there are now two systems of promoting goodcorporate governance, but ensuring that there is a check on the dominant role of themajority stockholders.

First is the system of cumulative voting mandatory for all stock corporationsunder Section 24 of the Corporation Code,35 which makes it mathematically possiblefor minority shareholders to pool their voting powers to a pre-computed number ofnominees to ensure that they would have minority representation in the Board ofDirectors. Consonant with this principle, Section 28 of the Corporation Codeprovides that the majority stockholders have no power to remove a director electedby cumulative voting except for cause.36

Second is the system of independent directors originally introduced for publiccompanies under Section 38 of the Securities Regulation Code for all public companiesto have “at least two (2) independent directors or such independent directors shallconstitute at least twenty percent (20%) of the members of such board, whichever isthe lesser.” The section defines an independent director as “a person other than anofficer or employee of the corporation, its parent or subsidiaries, or any otherindividual having a relationship with the corporation, which would interfere with


35 Sec. 24, Corporation Code: “At all elections of directors or trustees, there must be present, either in person orby representative authorized to act by written proxy, the owners of the majority of the outstanding capital stockx x x and said stockholder may vote such number of shares for as many persons as there are directors to beelected or he may cumulate said shares and give one candidate as many votes as the number of directors to beelected multiplied by the number of his shares shall equal, or he may distribute them on the same principleamong as many candidates as he shall see fit; Provided, That the total number of votes cast by him shall notexceed the number of shares owned by him as shown in the books of the corporation multiplied by the wholenumbers of directors to be elected.”

36 Sec. 28, Corporation Code: “Any director or trustee of a corporation may be removed from office by a vote ofthe stockholders holding or representing two-thirds (2/3) of the outstanding capital stock, or if the corporationbe a non-stock corporation, by a vote of two-thirds (2/3) of the members entitled to vote: x x x Provided, Thatremoval without cause not be used to deprive minority stockholders or members of the right of representationto which they may be entitled under Section 24 of this Code.”

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the exercise of independent judgment in carrying out the responsibilities of adirector.”37

In our book, we have discussed the shortcomings of the system of independentdirectors under the aegis of the original SEC Code which had formally adopted theStakeholder Theory; that since all directors of a public company, whether executive,non-executive, minority representing, or independent director, are now bound withduties not only towards the stockholders but all other stakeholders, then the necessityfor independent directors did not have a good case.

With the apparent abandonment under the Revised CG Code of the StakeholderTheory, and in fact an affirmation in its various provisions that the duties andresponsibilities of directors and management of public companies is owned tostockholders and other investors, then the strengthening of the role of independentdirectors, as occupying a quasi-public position (i.e., one that represents the “publicgood” in Board proceedings) has taken a more meaningful role.

Manual of Corporate Governance and the Penalty Provision

Under Article 9 of the Revised CG Code (on “Commitment to Good CorporateGovernance”), the SEC has continued with the requirement under the original SECCode38 that covered corporations must formally submit a manual of corporategovernance on which they “shall establish and implement their corporate governancerules in accordance with this Code.”

But unlike the original SEC Code which provided that failure to submit themanual is the only infraction that is penalized by a fine, the Revised CG Code underits Article 11 on “Administrative Sanctions” has expanded the penalty coverage toall violations of the Code, thus:

Article 11: Administrative Sanctions

A fine of not more than Two Hundred Thousand Pesos (Php200,000)shall, after due notice and hearing, be imposed for every year that acovered corporation violates the provisions of this Code, withoutprejudice to other sanctions that the Commission may be authorizedto impose under the law; provided, however, that any violation ofthe Securities Regulation Code punishable by a specific penalty shall

37 Section 38 of the SRC is the only other section which treats of independent directors, and requires that theboard of an exchange to include “no less than fifty one percent (51%) of the remaining members of the boardto be comprised of three (3) independent directors and persons who represent the interests of issuers, investors,and other market participants, who are not associated with any broker or dealer or member of the Exchange fora period of two (2) years prior to his/her appointment,” and that “[n]o officer or employee of a member, itssubsidiaries or affiliates or related interests shall become an independent director.”

38 Sec. IX, original SEC Code: “Failure to adopt a manual of corporate governance as specified therein shallsubject a corporation, after due notice and hearing, to a penalty of Php100,000.00.”



be assessed separately and shall not be covered by theabovementioned fine.39

Fines and other penalties imposed by the SEC are serious matters, not onlybecause of the pecuniary repercussions, but more importantly under the CorporationCode,40 and in the Revised SEC Code itself,41 a violation may constitute a groundfor the disqualification of a director, or constitute as “proper cause,” for his removalby the requisite vote of stockholders.42

Although there is no doubt that the failure to comply with the requirement offiling the manual is punishable under Article 11 of the Revised CG Code, it seemsdifficult to see how any other “violation” thereof may be properly punished by a fineof Php200,000 “for every year that a covered corporation violates the provisions ofthis Code.”

Firstly, instead of the fine being imposed on every violation of the provisions ofthe Revised CG Code, the penalty that is imposable is limited to “Php200,000 everyyear.” This would come to the dubious end that a covered corporation may commitvarious infractions under the Code, and only be liable to a maximum penalty of“Php200,000 per year.”

Secondly, corporate governance principles and best practices are primarily tobe followed or practiced by the directors and key officers of a covered corporation,and the infraction would be a personal liability on their part. And yet the provisionsof Article 11 of the Revised CG Code apply the penalty only to a violation by the“covered corporation,” and not on the director or officer guilty of an offense underthe Code.


40 Section 27 of the Corporation Code: “SEC. 27. Disqualification of directors, trustees or officers. – No person convictedby final judgment of an offense punishable by imprisonment for a period exceeding six (6) years, or a violationof this Code, committed within five (5) years prior to the date of his election or appointment, shall qualify asdirector, trustee or officer of any corporation. (n)”

41 Article 3(E)(1)(iv) of the Revised SEC Code provides “The following shall be grounds for the permanentdisqualification of a director: x x x (iv) Any person who has been adjudged by final judgment or order of theCommission, court, or competent administrative body to have willfully violated, or willfully aided, abetted,counseled, induced or procured the violation of any provision of the Corporation Code, Securities RegulationCode or any other law administered by the Commission or BSP, or any of its rule, regulation or order;”

Article 3(E)(2)(iii) of the Revised SEC Code provides that “The Board may provide for the temporarydisqualification of a director for any of the following reasons: x x x (iii) Dismissal or termination for cause asdirector of any corporation covered by this Code. The disqualification shall be in effect until he has clearedhimself from any involvement in the cause that gave rise to his dismissal or termination.”

42 Section 28 of the Corporation Code: “SEC. 28. Removal of directors or trustees. – Any director or trustee of acorporation may be removed from office by a vote of the stockholders holding or representing two-thirds (2/3)of the outstanding capital stock . . . Provided, That removal without cause not be used to deprive minoritystockholders or members of the right of representation to which they may be entitled under Section 24 of thisCode. (n)”

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Thirdly, although the non-filing of the manual on corporate governanceconstitutes a situation that “a covered corporation violates the provisions of thisCode” simply because the original provisions of the original SEC Code specificallycovered only such violation, it is not clear what other violations may be punishableunder Article 11 of the Revised CG Code.

Atty. Gerard M. Lukban, the SEC Secretary, was quoted as saying that “Theprevious Code had provisions that use ‘may’. . . Here some were changed to ‘shall’so they are no longer just recommendatory.”43 That would mean that every provisionof the Code that imposes an obligation with the use of the word “shall” would be aviolation of the Revised CG Code that would be punishable with the find underArticle 11 thereof.

For example, under Art. 2(F), it is provided that —

THE BOARD SHOULD FORMULATE THE CORPORATION’SVISION, MISSION, STRATEGIC OBJECTIVES, POLICIES AND

PROCEDURES THAT SHALL GUIDE ITS ACTIVITIES, INCLUDING

THE MEANS TO EFFECTIVELY MONITOR MANAGEMENT’SPERFORMANCE.44

Obviously, compliance with the above-indicated duty may find its expressionin the manual of corporate governance that a covered corporation submits to theSEC. But if the manual duly submitted does not contain one or some of the itemsenumerated, or what are submitted are not effective or complete, does that constitutea violation of the Revised CG Code, triggering the imposition, after notice andhearing, of the Php200,000 fine? Who is to judge what is “effective”?

Another example would Article 6(B) of the Revised CG Code which reads —

B) THE BOARD SHOULD BE TRANSPARENT AND FAIR IN THE

CONDUCT OF THE ANNUAL AND SPECIAL STOCKHOLDERS’MEETINGS OF THE CORPORATION. THE STOCKHOLDERS

SHOULD BE ENCOURAGED TO PERSONALLY ATTEND SUCH

MEETINGS. IF THEY CANNOT ATTEND, THEY SHOULD BE

APPRISED AHEAD OF TIME OF THEIR RIGHT TO APPOINT A

PROXY. SUBJECT TO THE REQUIREMENTS OF THE BYLAWS,

THE EXERCISE OF THAT RIGHT SHALL NOT BE UNDULY

RESTRICTED AND ANY DOUBT ABOUT THE VALIDITY OF A PROXY

SHOULD BE RESOLVED IN THE STOCKHOLDER’S FAVOR.45

43 Business World, 24 June 2009.





In a situation where there are issues in the implementation of by-law provisionson proxy, and the Board, upon advice of counsel, takes a position which is deemedrestrictive of the right of a stockholder, would that trigger the imposition of thepenalty under Article 11 of the Code? Would the fine be imposable against thecovered corporation or against the members of the Board? Who is to say what is“unduly restrictive”?

If we were to presume that the clear intention under Article 11 is that thepenalty imposed would be personally against the offending director or officer, itwould have a chilling effect on the exercise of business judgment on the part of theBoard of Directors, and would even discourage qualified professional directors toaccept appointment to public companies simply because they are not certain exactlywhat action or inaction would constitute punishable offense under said provision.

There is a similar all-encompassing penalty clause under Section 144 of theCorporation Code,46 and our comments on whether an imposition of penalty maybe achieved thereunder are worth quoting in this paper:

Looking at the language of Section 144 of the CorporationCode, it seems all-encompassive in nature as to imposecriminal liability for “[v]iolations of any of the provisions ofthis Code or its amendments not otherwise specificallypenalized therein.” . . .

It is difficult to construe Section 144 of the CorporationCode to mean that all non-compliance with the provisionsof the Corporation Code would be criminally punishable.For example, under Section 26 of the Corporation Code, itis provided that within thirty (30) days after the election ofthe directors, trustees and officers of the corporation, thesecretary, or any other officer of the corporation, shall submitto the SEC, the names, nationalities and residences of thedirectors, trustees and officers elected. If a corporatesecretary fails to comply with this provision, would he thenbe subject to a criminal penalty under Section 144?

46 SEC. 144. Violations of the Code.—Violations of any of the provisions of this Code or its amendments not otherwise specificallypenalized therein shall be punished by a fine of not less than one thousand (Php1,000.00) pesos but not more thanten thousand (Php10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five(5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may,after notice and hearing, be dissolved in appropriate proceedings before the Securities and ExchangeCommission; Provided, That such dissolution shall not preclude the institution of appropriate action against thedirector, trustee, or officer of the corporation responsible for said violation: Provided, further, That nothing in thissection shall be construed to repeal the other causes for dissolution of a corporation provided in this Code.

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Such a construction would seem too harsh, and effectivelydiscourages competent and well-meaning individuals fromaccepting positions within the corporate setting. It wouldthen make the corporation a very unattractive medium forcommerce.

x x x

In effect, the broad coverage of Section 144 ismeaningless since it is applicable only to Section 74 of theCode. If that is the legal effect, then it could be argued thatthe Legislature, when it enacted Section 144 of part of theCorporation Code, had not intended it to be a practicallyuseless provision since the penal sanctions provided thereincould have effectively been stated in Section 74 if it is indeedthe only violation applicable to said provision. However, sucha position fails to consider that indeed Section 144 was meantto be the over-all penal sanction under the Code, if and whenthe Legislature deems it appropriate to impose a penalsanction for violation thereof not only based on the currentprovisions of the Code, but also “its amendments” in thefuture.

It should also be noted that although a penal provisionlike Section 144 is usual in special laws, nevertheless, theimplementation of the principle dura lex, sed lex to such penalprovisions under most special laws is without controversybecause the subject thereof is limited and the acts coveredtherein are clearly defined. Such position cannot be equatedto Section 144, since the Corporation Code, indeed is a“code” that necessary covers a broad subject and almostinnumerable acts.47

47 VILLANUEVA, PHILIPPINE CORPORATE LAW (2001 ed.), at pp. 870 – 873.



ADR System for Public Companies

The Revised CG Code has introduced as one of the “Duties and Functions” ofthe Board of Directors of a public company, the setting up of a system of disputeresolution, thus:

F) Responsibilities, Duties and Functions of the Board

x x x

2. Duties and Functions

To ensure a high standard of best practice for the corporation andits stockholders, the Board should conduct itself with honesty andintegrity in the performance of, among others, the following dutiesand functions:

x x x .

J) Establish and maintain an alternative dispute resolution systemin the corporation that can amicably settle conflicts or differencesbetween the corporation and its stockholders, and the corporationand third parties, including the regulatory authorities.

x x x .48

The establishment of an alternative dispute resolution system as part of thefeatures of Philippine public companies is very laudable. The slow grind of thePhilippine judicial process which has discouraged investments in the Philippine markethas compelled even the Supreme Court to set up special commercial courts to handlecorporate cases and issue special rules of procedure. In addition, the Supreme Courthas formally adopted mediation proceedings that must be resorted to by the partiesbefore formal judicial proceedings can be pursued.

Perhaps the best way by which the SEC, being the government agency grantedcontrol and supervision over corporate media, can further advance the way towardan Alternative Dispute Resolution system for Philippine public companies is to setup a formal ADR Panel that can have mandatory enforcement in matters pertainingto conflicts or differences between corporations and their shareholders and investors.

In a study done for the Asian Development Bank on the ADR system of thePhilippines, it was determined that the most successful system is the ConstructionIndustry Arbitration Council (CIAC), which was mandated through the decree

48 Reformatted.

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powers of Pres. Ferdinand Marcos, and has become a reliable manner of resolvingconflicts in the construction industry. The impetus behind the CIAC’s success lies intwo factors, namely, (a) that it was statutorily mandated, so that construction industryplayers had no choice but to resort to arbitration and could not “rely” upon the slowgrind of judicial proceedings to stymie legitimate complaints or claims; and (b) thearbitration process was being overseen by the construction industry’s own expertsand leading advocates, who understood the business and technical nuances of theindustry.

Even well-trained RTC commercial court judges are really no match to theexpertise that SEC officers, corporate and business practitioners have on issues andintricacies arising within the Philippine public companies system. Perhaps the SECmay oversee the establishment and operation of the “Public Companies ArbitrationCouncil” and making resort to PCAC arbitration mandatory through the issuanceof a formal SEC memorandum, pursuant to its “vast” quasi-legislative powers underSection 72 of the Securities Regulation Code, thus —

SEC. 72. Rules and Regulations; Effectivity. - 72.1. ThisCode shall be self-executory. To effect the provisions andpurposes of this Code, the Commission may issue, amend,and rescind such rules and regulations and orders necessaryor appropriate, including rules and regulations definingaccounting, technical, and trade terms used in this Code,and prescribing the form or forms in which informationrequired in registration statements, applications, and reportsto the Commission shall be set forth. For purposes of its

rules or regulations, the Commission may classify

persons, securities, and other matters within its

jurisdiction, prescribe different requirements for

different classes of persons, securities, or matters,and by rule or order, conditionally or unconditionally

exempt any person, security, or transaction, or class

or classes of persons, securities or transactions, from

any or all provisions of this Code.49

Failure on the part of the Commission to issue rules andregulations shall not in any manner affect the self-executorynature of this Code.

x x x 50





Conclusions

In our work on Philippine Corporate Governance, we have demonstrated thatauthorities in other disciplines, particularly on Economics and Business Management,have pointed out that the philosophical basis of the Stakeholder Theory was itselfnot a perfected system — that it was still a work-in-progress. Therefore, it was verydifficult under the original SEC Code to evolve a truly efficient system of corporategovernance adopting the Stakeholder Theory, as contrasted from the maximizationof shareholders’ value.

One of the fundamental issues arising under the original SEC Code’sstakeholder doctrine, apart from recognizing that the Boards of Directors of publiccompanies owe duties and obligations not just to the shareholders but to variousstakeholders who are affected by the company’s business enterprise, was that theoriginal SEC Code found it difficult to provide a hierarchy of values by which directorsand Management of a covered corporation could properly measure compliance withtheir varied duties to their stakeholders. In other words, the original SEC Code wasvery good on broad principles ushering in the Stakeholder Theory, but was short onparticulars on how the directors were going to meet their duties and responsibilitiesunder such expanded constituencies.

We thought then that faced with such a challenge, it was ingenious for the SECto have provided in the original SEC Code that every covered corporation, in itsmanual of corporate governance, was mandated to identify its considered stakeholdersand define the rights they may have against the company in the operation of itsbusiness, thus —

iv. Identify the corporation’s major and other stakeholdersand formulate a clear policy on communicating or relatingwith them accurately, effectively and sufficiently. Theremust be an accounting rendered to them regularly in orderto serve their legitimate interests.

Likewise, an investor relations program that reaches outto all shareholders and fully informs them of corporateactivities should be developed. As a best practice, thechief financial officer or CEO should have oversight ofthis program and should actively participate in publicactivities.

Under the aegis of such provisions in the original SEC Code, it would ensureto covered companies that as the Stakeholder Theory is formally adopted intoPhilippine jurisdiction, it did not turn out to be an open-ended affair where theBoards of Directors of public companies were not quite sure of the extent of theirduties and responsibilities under a system of expanded constituencies, and be able

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to define for themselves precisely what they considered to be the extent of therights of such identified stakeholders.

The afore-quoted provision, of course, no longer appears in the Revised CGCode, for instead of being able to evolve the system of stakeholdership for Philippinepublic companies, the SEC seems to have lost the heart and just decided to go backto the old corporate maxim that the duty of the Board of Director of every corporationis to maximize its profits.

What began as a bold venture into a cutting-edge Corporate Governance systemseems to have come to an end, at least insofar as the SEC is concerned. There wasno denying that adopting the Stakeholder Theory as the cornerstone of our systemof good corporate governance for Philippine public companies was no easy task; butconsidering the scarce resources that we have in this country, most of it in thecorporate coffers, it was an adventure worth pursuing to a successful end.

� �


SYMBOLIC SPEECH IN THE WORKPLACE

Comments on NUWHRAIN v. Court of Appeals

Symbolic Speech In The Workplace


Florin Ternal Hilbay*

Free speech is a term denoting that basket of doctrines in constitutional lawreferring to the extent of the right of an individual, organization, or corporate entityto engage in certain expressive or communicative activities in relation to thegovernment, any of its officers, any entity assuming public or quasi-public status orany other matter that impacts public interest. As a core component of the Bill ofRights, it is traditionally categorized as a tool that serves to calibrate the variouskinds of relationships that bind the individual and the State. A person may use freespeech to criticize the government1 or religious beliefs,2 to sell or advertise a product3

or an idea,4 compel the disclosure of information5 or immunize oneself fromcompelled disclosure,6 read or disseminate “dangerous” ideas7 or enjoy sexuallyexplicit expression,8 and express oneself through various forms of art.9 Being anitem of constitutional law, it is axiomatically regarded as forming part of the discourseof “the public,” as opposed to its opposite heuristic, “the private.”

* ASSISTANT PROFESSOR & ENRIQUE CHAN PROFESSORIAL CHAIR IN LAW, UNIVERSITY OF THE PHILIPPINES, COLLEGE OF LAW.A.B. (University of Santo Tomas), Ll.B. (University of the Philippines), Ll.M (Yale Law School). This Article isan expanded work on the topic NUWHRAIN & Free Speech discussed in a lecture-forum titled “Strike-IngHairstyles: NUWHRAIN, Labor Rights & Free Speech” sponsored by the Institute of Human Rights on 8 July2009. I thank Prof. Barry Gutierrez for the invitation to that lecture-forum. I thank Mary Anne Raniola andTracy Ong for their assistance.

1 See United States v. Bustos 37 Phil. 731 (1918); Soliven v. Makasiar, 167 SCRA 393 (1988); Primicias v. Fugoso, 80Phil. 75 (1948); Reyes v. Bagatsing, 210 Phil. 457 (1983); Bayan v. Ermita, 488 SCRA 226 (2006); Cox v. Louisina,379 U.S. 536 (1965); People v. Perfecto, 43 Phil. 887 (1922).

2 See MVRS Publications, Inc., et al. v. Islamic Da’wah Council of the Philippines, Inc., et. al., 396 SCRA 210 (2003);Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529 (1996); Cantwell v. Connecticut, 310 U.S. 296 (1940); AmericanBible Society v. City of Manila, 101 Phil. 386 (1957). See also Ignacio v. Ela, 99 Phil. 346 (1956),(Concepcion, dissenting).

3 See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas &Electric Co. v. Public Service Commission, 447 U.S. 557 (1980); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85(1977); Thompson v. Western States Medical Center, 535 U.S. 357 (2002); Lorillard Tobacco Corp. v. Reilly, 533 U.S.525 (2001); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

4 See Eastern Broadcasting Corporation v. Dans, 137 SCRA 628 (1985); Adiong v. COMELEC, 207 SCRA 712 (1992);Guingging v. Court of Appeals, 471 SCRA 196 (2005); Gonzales v. Commission on Elections, 137 SCRA 471 (1969);Chavez v. Gonzales, 545 SCRA 441 (2008); Soriano v. Laguardia, 587 SCRA 79 (2009); Terminiello v. Chicago, 337U.S. 1 (1949); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Abrams v. United States, 250 U.S. 616 (1919).

5 See Valmonte v. Belmonte, 170 SCRA 256 (1989).

6 See Akbayan v. Aquino, 558 SCRA 468 (2008); Chavez v. PCGG, 360 Phil. 133 (1998); Neri v. Senate, 564 SCRA152 (2008), Resolution on the Motion for Reconsideration (25 March 2008).

7 See Gitlow v. United States 268 U.S. 652 (1925), Holmes J., dissenting: “Every idea is an incitement. It offers itselffor belief, and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles themovement at its birth. The only difference between the expression of an opinion and an incitement is thespeaker’s enthusiasm for the result.” See also New York Times v. United States, 403 U.S. 713 (1971); Whitney v.California, 274 U.S. 357 (1927).

8 See Stanley v. Georgia, 394 U.S. 557 (1969); Ashcroft v. Free Speech Coalition, 535 U.S. 564 (2002); AmericanBooksellers Association v. Hudnut, 771 F.2s 323 (7th Cir. 1985); Schad v. Borough of Mount Ephraim, 452 U.S. 61(1981);Gonzales v. Kalaw-Katigbak, 137 SCRA 717 (1985).

9 See Burtsyn v. Wilson, 343 U.S. 495 (1952); People vs. Go Pin, 97 Phil 418 (1955); Gonzales v. Kalaw Katigbak, supra;Iglesia ni Cristo v. Court of Appeals, supra note 3; National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

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The reference to the dual categories of “the public” and “the private” as heuristictools is meant to underscore the reality that, from a certain perspective, these basketsare in fact not so separate from each other,10 and that, instead of being separatelysealed or hermetically tight compartments, they are, in fact, quite porous andintertwined. The law on contracts, for example, falls under the category of theprivate and yet, no sooner do we start reading the provisions of the Civil Code thanwe realize that “the law” on contracts is an amalgamation of intensely public policiesregulating entry, exit, as well as the terms and conditions of private contracting.11

The more we look at those private law subjects in law school, the more we realizethat they share more characteristics with public law than we have been made torealize by the artificial categories of the curriculum. Ultimately, it turns out thatwhat we can do privately is parasitic on policies that always turn out to be directedtowards some public objective.

This reality is even more true in the case of labor law, which, among the generalcategories of law taught in law schools and as a separate subject in the barexaminations, is of a more recent vintage. This is evident in the provisions of theCivil Code, which, as revised in 1950, had a “new” section on “Contract of Labor”12

10 See Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130 U. Pen. L. Rev. 1349(1982).

11 A case in point is the Family Code, a subject taught as part of the civil law on private relations. But very littlein the Family Code is “private” in the traditional sense that it is the parties that are given the right to choose. Tobe sure, most of the provisions in the code are state policies on property relations as well as entry and exitmechanisms. Those aspects of family life that may fall under the category of private choice—selection of spouse,number of children, decision to cohabit—are actually not regulated by the code.

12 ARTICLE 1700. The relations between capital and labor are not merely contractual. They are so impressedwith public interest that labor contracts must yield to the common good. Therefore, such contracts are subjectto the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, workingconditions, hours of labor and similar subjects.

ARTICLE 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest orconvenience of the public.

ARTICLE 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of thesafety and decent living for the laborer.

ARTICLE 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever,shall be valid.

ARTICLE 1704. In collective bargaining, the labor union or members of the board or committee signing thecontract shall be liable for non-fulfillment thereof.

ARTICLE 1705. The laborer’s wages shall be paid in legal currency.

ARTICLE 1706. Withholding of the wages, except for a debt due, shall not be made by the employer.

ARTICLE 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done.

ARTICLE 1708. The laborer’s wages shall not be subject to execution or attachment, except for debts incurredfor food, shelter, clothing and medical attendance.

ARTICLE 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.

ARTICLE 1710. Dismissal of laborers shall be subject to the supervision of the Government, under speciallaws.

ARTICLE 1711. Owners of enterprises and other employers are obliged to pay compensation for the death ofor injuries to their laborers, workmen, mechanics or other employees, even though the event may have beenpurely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in thecourse of the employment. The employer is also liable for compensation if the employee contracts any illnessor disease caused by such employment or as the result of the nature of the employment. If the mishap was dueto the employee’s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liablefor compensation. When the employee’s lack of due care contributed to his death or injury, the compensationshall be equitably reduced.

ARTICLE 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employershall be solidarily liable for compensation. If a fellow worker’s intentional or malicious act is the only cause ofthe death or injury, the employer shall not be answerable, unless it should be shown that the latter did notexercise due diligence in the selection or supervision of the plaintiff’s fellow worker.

See also Section 3 (Contract for A Piece of Work) of the same title and chapter, Art.1713 et seq.




appearing under the chapter on “Work and Labor,” as part of Title VIII, whichrefers to “Lease.” While the category has an undercurrent of political incorrectnessbecause of its objectifying tendency, it stands as a powerful symbol of what therelationship is all about. This is understandable given the history of labor lawlegislation in the Philippines, which, just like most other areas of law in the Islands,cannot be historicized without reference to its status as a colony.

The relationship between labor and capital under the Spanish regime was amatter of civil—and therefore, private—law.13 Just like any other item or good in themarket, labor was for sale or lease as a form of property held by the laborer whichcan be bought by those who owned capital. This relationship was but a manifestationof the classical liberal model of the market economy in the 19th century, where self-interested players in the system were presumed capable enough to take care ofthemselves because they were rational. Under the law on civil relations, therelationship between labor and capital was a matter of contract and stipulationsbetween the parties were law between them. This meant, first, that the State wasunder obligation to respect the parties’ agreement which is protected by the non-impairments clause in the form of a constitutional norm14 or a statutory right; andsecond, that in case of disagreement, the State was bound to enforce the contractualstipulations agreed upon by the parties.

The most famous judicial statement embodying the philosophy behind therelationship between labor and capital is the case of Lochner v. New York,15 where theU.S. Supreme Court declared unconstitutional a state criminal law regulating suchrelationship through the device of imposing maximum hours. According to theCourt, the right to purchase or to sell labor is part of the liberty protected by the

13 See Spanish Civil Code of 1889, Book IV (Obligations & Contracts), Title VI (Contracts of Lease), Chapter III(Work & Labor). Section I, on Labor of Servants and Wage Earners provides—

Art. 1583. This class of service may be contracted for a definite or indefinite period, or for any specific work.A hiring for life is void.

Art. 1584. A domestic servant hired for a definite period and to be employed in the personal service of hismaster, or of the family of the latter, may leave the service or be discharged before the expiration of the term;but if the master dismisses the servant without sufficient cause, he shall indemnify him by paying him fifteendays’ wages in addition to the wages due.

Art. 1585. In addition to the provisions contained in the preceding articles with respect to masters and servantsthose of the special laws and ordinances shall be observed.

Art. 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time or for certain workcannot leave or be dismissed without just cause, before the fulfillment of the contract.

Art. 1587. The dismissal of the servants, mechanics, artisans, and other hired laborers to whom the precedingarticles refer gives the right to dispossess them of any implements or buildings of which they may havepossession by reason of their duties.

14 CONST., art. III, § 10: “No law impairing the obligation of contracts shall be passed.” See Home Building and LoanAssociation v. Blaisdell, 290 U.S. 398 (1934); Ortigas & Co. Limited Partnership v. Feati Bank And Trust Co., 183 Phil.176 (1979).

15 198 U.S. 45 (1905).

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Due Process Clause,16 and thus within the realm of private choice and protectedfrom the intrusive force of public regulation.

Events in the United States following the First World War, specifically the so-called Great Depression and the response to it—The New Deal—made policymakersrethink their confidence in the operation of laissez faire’s invisible hand. The industrialrevolution created a lot of wealth that no society had ever produced before, but itdid little to alleviate the sweatshop system and the institutionalized slavery it produced.This is why, when the market failed, people started looking up to the governmentfor relief. Prolonged recession meant that the market, which was before entitled tofull faith and credit, sometimes could not correct itself fast enough, if at all, todampen and reverse the staggering human cost of an economic downturn. Roosevelt’sNew Deal increased the size of government and introduced the administrative statewhose hallmark was the regulatory bureaucracy that was meant to police the targetconcerns of the government—agriculture, securities, banking, infrastructure, andlabor.17

The notion of a liberal state was a creature of the deep mistrust of the kind ofinstitutions that ruled peoples’ lives prior to the rise of the ideal of publicaccountability. The history of authoritarianism, monarchism, and theocracy in Europemade it essential for those who believed in basic individual freedoms—life, liberty,and property—to argue for statutes enumerating constraints against the use of publicpower. This fixation with the dangers inherent in governments of unlimited powersdirected the focus of constitution-builders in structural limitations like the bill ofrights. Through a system of rights, the government itself became the protector ofliberty and the guarantor of fairness. Through the principle of universality of rights,the liberty of those with substantial and minimal amounts of property becameconcerns subject to the equal consideration of governments. Which is why, fromthis perspective, Lochner simply operationalized the effects of a certain philosophicaltradition through the intervention of an activist court that sought to bar thegovernment from experimenting on solutions to the economic crisis.

This is also why, from a theoretical standpoint, the events of the 1930s wererevolutionary insofar as it meant the blurring of the lines between the public and theprivate or a recasting of the relationship between the government and the people.Apparently, the Americans found out that the very institution that they could nottrust was the very same institution they needed to trust if they wanted to respond

16 Id, at 57: The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words.There is no reasonable ground for interfering with the liberty of person or the right of free contract, bydetermining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class arenot equal in intelligence and capacity to men in other trades or manual occupations, or that they are not ableto assert their rights and care for themselves without the protecting arm of the state, interfering with theirindependence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purelylabor law, with no reference whatever to the question of health, we think that a law like the one before usinvolves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not inthe slightest degree affected by such an act.

17 See Robert S. McElvaine, THE GREAT DEPRESSION (1993); William E. Leuchtenburg, FRANKLIN D. ROOSEVELT & THE

NEW DEAL 1932-1940 (1963).




from the shock of a depression. In the specific case of labor, the effect was thecreation of labor law as a specific area of legal discourse—with a separate jurisprudenceand a separate set of experts. This event meant that the relationship between laborand capital would no longer be a matter of private law; instead, it would now assumea hybrid character whose various aspects are subject to both private choice andpublic policy.

A Dangerous Equivalence

The NUHWRAIN Decision. I introduce these remarks in the context of theSupreme Court’s decision in NUWHRAIN v. Court of Appeals,18 which upheld therespondent court’s decision terminating the services of union officers for violationof the hotel’s grooming standards.19 The case grew out of a labor dispute betweenNUWHRAIN and the management of Dusit Hotel. In 2000, the parties werenegotiating a collective bargaining agreement. When a deadlock ensured,NUWHRAIN decided to file a notice of strike. Conciliation proceedings also failed,thereafter followed by a strike vote by the union. In the meantime, and within themandatory 30-day cooling off period, some union members decided to go to work“sport[ing] closely cropped hair or cleanly shaven heads.”20 The response of DusitHotel was to prevent these workers from entering the premises on the ground thatthey were in violation of the hotel’s grooming standards.21 In retaliation, the unionstaged a picket outside the hotel premises.22 Dusit Hotel responded by preventingother union members from entering the hotel, causing these workers to join thepicket.23 Suspension orders were then issued by the hotel in relation to the followingcharges: violation of the duty to bargain in good faith; illegal picket; unfair laborpractice; violation of the hotel’s grooming standards; illegal strike; and commissionof illegal acts during an illegal strike.24 Eventually, the hotel terminated the servicesof twenty-nine (29) union officers and sixty-one (61) members, suspended eighty-one(81) employees for thirty days, forty-eight (48) employees for fifteen days, four (4)employees for ten days, and three (3) employees for five days.25

The Supreme Court divided the issues into two, focusing on the question ofwhether or not the following acts were legal: first, reporting for work with bald orcropped hairstyle (18 January 2002); and second, the picketing of the hotel premises

18 570 SCRA 598, G.R. No. 163942 (11 November 2008). The full title of the case is National Union of Workersin the Hotel Restaurant and Allied Industries (NUWHRAIN-APL-IUF) Dusit Hotel Nikko Chapter v. Court ofAppeals.

19 More precisely, the decision of the Court of Appeals was affirmed insofar as the union officers were concernedand modified with respect to the union members, who were reinstated without backwages.

20 Supra note 19, at 604.

21 Id.

22 Ibid.

23 Ibid.

24 Ibid.

25 Id, at 605.

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(26 January 2002). For purposes of analyzing the case, I shall focus on the firstissue, which, in any case, is determinative of how the entire litigation turns. TheCourt listed down four justifications for upholding the dismissal of the employees—

First, the Union’s violation of the hotel’s grooming standards was clearly adeliberate and concerted action to undermine the authority of and to embarrass theHotel and was, therefore, not a protected action.26

Second, the Union’s concerted action which disrupted the Hotel’s operationsclearly violated the CBA’s “No Strike, No Lockout stipulation.”27

Third, the Union officers and members’ concerted action to shave their headsand crop their hair not only violated the hotel’s grooming standards but also violatedthe union’s duty and responsibility to bargain in good faith.28

Fourth, the Union failed to observe the mandatory 30-day cooling off periodand the seven-day strike ban before it conducted the strike on 18 January 2002.29

The Doctrinal Consequences of NUHWRAIN. Even from the standpoint of doctrine,NUHWRAIN should already be a matter of interest. This is because of the curiousfact that the union members did not stop working until they were prevented byDusit Hotel from entering the workplace when they showed up for work. What theydid was to cut short or lose their hair. This is a very important fact considering theLabor Code’s definition of a strike under Art. 212(o) as “any temporary stoppage ofwork by concerted action of employees as a result of an industrial or labor dispute.”

The reality is that the “concerted action of the employees” brought about bytheir “labor dispute” with the hotel is nowhere near how people would normallyunderstand “temporary stoppage of work.”30 To stop working temporarily means torefuse to perform the job for which one is hired, traditionally understood as notappearing in the workplace or, whether or not work is done in a space controlled bythe employer, by not creating the product or performing the service one is engagedto do. “Stoppage” produces material consequences measurable in terms of the amountof products churned out by the factory or the loss of revenue arising out of non-performance of a service. In either case, the damage to the employer is evidentgiven that the employees, though engaged in an economic tiff with the employer, are

26 Id, at 613.

27 Id, at 614. ARTICLE XXII—NO STRIKE/WORK STOPPAGE AND LOCKOUT. SECTION 1. No Strikes.The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal tohandle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/orinterferences with any of the normal operations of the HOTEL during the life of this Agreement.

28 Ibid.

29 Id, at 615.

30 See Lapanday Workers Union v. NLRC 248 SCRA 95 (1995); Ilaw at Buklod ng Manggagawa (IBM) v. NLRC 198SCRA 586 (1991); Airline Pilots Association of the Philippines v. Court of Industrial Relations 167 Phil. 14 (1977);Jacinto v. Court of Appeals, 281 SCRA 57 (1997); Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU, et al. v.Sulpicio Lines, Inc., 426 SCRA 319 (2004).




still under its employ and thus expected to produce or serve. But in NUWHRAIN,the employees did report for work and perform the task they were supposed to do,and there is nothing in the decision of the Court referring to any disturbance in thebusiness of Dusit Hotel as a consequence of the employees’ appearing for workwearing hairstyles different from what they had before. Nor was there any insinuationthat they performed at sub-par levels such that the revenue of the hotel was affected,even if slightly. We are therefore left with the question whether, in the absence ofany material and calculable damage to the hotel, as shown in the evidence, the act ofthe unionists in expressing themselves through their hairstyle while performing thefunctions for which they were hired can justifiably constitute a strike within themeaning of the statute. This question takes on considerable value because, as shallbe discussed in the next section, the act of the employees could be analogized withthe concept of symbolic speech protected by the Free Speech Clause of theConstitution especially in the light of the historical privileging of the rights of laborin Philippine law.

For starters, the Court’s reference to the various categories of an illegal strikedoes not really help and even undermines its conclusions.31 Nowhere in theauthoritative enumeration cited by the Court could one find anything close to whatit wanted to justify. Teller’s enumeration was meant to generalize and was not directedat specific forms of striking; nor was it meant to guide judges in categorizing whetherthose concerted actions by employees that do not fall within the standard definitionare legal or not. And so the only way the Court could justify its decision was byinterpreting the action of the unionists and holding that it amounted to somethingbeyond the common meaning attributable to the term, that is, by stretching thelanguage and legislating a new standard of action. The most crucial paragraph ofthe Court’s decision is found below—

In view of the Union’s collaborative effort to violate the Hotel’s GroomingStandards, it succeeded in forcing the Hotel to choose between allowing itsinappropriately hair styled employees to continue working, to the detriment of itsreputation, or to refuse them work, even if it had to cease operations in affecteddepartments or service units, which in either way would disrupt the operations ofthe Hotel. This Court is of the opinion, therefore, that the act of the Union was not

31 The NUWHRAIN Court, citing Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission,further citing Ludwig Teller, enumerates the so-called categories—

(1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmentalfunctions; or

(2) [when it] violates a specific requirement of law, [such as Article 263 of the Labor Code on the requisitesof a valid strike]; or

(3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair laborpractice against non-union employees; or

(4) [when it] employees unlawful means in the pursuit of its objective, such as widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or

(5) [when it] is declared in violation of an existing injunction [such as injunction, prohibition, or order issuedby the DOLE Secretary and the NLRC under Art.263 of the Labor Code; or

(6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.”

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merely an expression of their grievance or displeasure but, indeed, a calibrated andcalculated act designed to inflict serious damage to the Hotel’s finances or itsreputation. Thus, we hold that the Union’s concerted violation of the Hotel’sGrooming Standards which resulted in the temporary cessation and disruption ofthe Hotel’s operations is an unprotected act and should be considered an illegalstrike.32

The operative word in the language of the Court is found in the last sentence:considered; and the rhetorical strategy for arriving at this conclusion is that of necessity.Looking at the facts of this case, one should immediately notice that the responsibilityfor the actual strike—the picketing itself—rests on the answer to the question: who isto blame for the escalation of this economic war? The hotel or the union? It goeswithout saying that if the union members actually did stop working, the Court wouldhave simply applied the Teller formulation in a rather straightforward manner andthis incident would have ended up as just another labor matter. But precisely becausethe unionists did not stop working until they were prevented from entering thepremises of the hotel (because of their violation of the grooming standards), theCourt had to preliminarily determine who was at fault for the eventual strike.The union says the refusal to allow them to work triggered the picketing, whilethe hotel asserts that the employees’ (some of them, at least) hairstyle wasunacceptable.

According to the Court, the effect of the union members sporting shorthairstyle was to force the hand of the hotel, compelling it to bar the entry into thepremises of employees who suited up for work. This strategy essentially foreclosedany possibility of resolving the issue of violation of the grooming standards separatelyfrom the problem of the picketing that ensued. Moreover, it allowed the Court totransfer to the employees the responsibility of the hotel for having prevented theworkers from entering the premises. Lack of choice on the part of the hotelmeant that the employees themselves sealed their faith by cutting short theirhair.

It is noteworthy, however, that strike is a form of action evoking dissent, andas such is similar to the action of the employees cutting short their hair, given thecontext of this case. But, at the same time, “strike” is a formally defined term underthe Labor Code, with specific consequences very different from the consequences ofprotesting in any other manner. For example, a disgruntled group of employees whoends up distributing defamatory materials against their supervisor would be liablewithin the company for violation of some ethical standards and outside of it for civildamages or even violation of criminal laws. But a group of employees who engage in

32 Supra note 19, at 613-614.




an illegal strike suffer from liabilities defined by the Labor Code itself.33 Under thelaw, employees are allowed to impair the operations of the employer in order toequalize the relationship between them. This is why the union is held to a higherstandard of accountability for the illegal use of such a powerful weapon. This assumes,however, that the employees held liable did engage in a strike as defined by thestatute whose defining characteristic is a temporary stoppage of work. Any otheraction of the employees that burdens or damages the employer is subject to rulesother than the law on strikes.

The doctrinal shift is therefore the creation of an equivalence between, on theone hand, concerted action which is not stoppage of work and, on the other, strikingas traditionally understood under the Labor Code and so interpreted by the SupremeCourt. In essence, what the Court has done is to expand the definition of a strike tocover any concerted action that purportedly damages the employer in the course ofan economic dispute. Whereas before, the understanding was that strikes as definedby law were construed in the physical sense of people refusing to work and thusimpliedly damaging the business of the employer. Today that definition has beenmodified to the extent that refusal to work may, as in NUWHRAIN, no longer be anelement so long as damage to the employer as a consequence of the concerted actionmay be inferred. This is a momentous shift in the original balance of power betweenlabor and capital insofar as the decision places the potential for greater punishmentfor collective activity not involving temporary work stoppage. In the specific case ofNUWHRAIN, the cost of this judicial expansion is the decimation of the core ofofficers of the union, as it sanctioned the dismissal of twenty-nine (29) union leaders.

It can be supposed that an equivalence can arguably be made in those instanceswhere the employees do not stop working but nonetheless inflict damage on theemployer, as if they did not work at all. Or where the employees use the opportunityto work precisely to mimic the effects of a strike. Definitely, workers who are ill-motivated can be as dangerous when they are inside the premises as when they areoutside. But one would think that, given the potential dangers of legislating into thelaw an equivalence of this nature, the Court would have been more cautious and

33 Id, at 616-617: “What then are the consequent liabilities of the Union officers and members for their participationin the illegal strike? Regarding the Union officers and members’ liabilities for their participation in the illegalpicket and strike, Art. 264 (a), paragraph 3 of the Labor Code provides that ‘[a]ny union officer who knowinglyparticipates in an illegal strike and any worker or union officer who knowingly participates in the commissionof illegal acts during a strike may be declared to have lost his employment status. . . .’ The law makes a distinctionbetween union officers and mere union members. Union officers may be validly terminated from employmentfor their participation in an illegal strike, while union members have to participate in and commit illegal acts forthem to lose their employment status. Thus, it is necessary for the company to adduce proof of the participationof the striking employees in the commission of illegal acts during the strikes.” (internal citation omitted). Seealso: Labor Code of the Philippines, Book V, Title 1, Chapter IV, Art. 272: Penalties. – (a) Any person violatingany of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos(Php1,000.00) nor more than ten thousand pesos (Php10,000.00) and/or imprisonment for not less than threemonths nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court.Prosecution for the same act under the Revised Penal Code, and vice versa. (b) Upon the recommendation ofthe Minister of Labor and Employment and the Minister of National Defense, foreigners who violate theprovisions of this Title shall be subject to the immediate and summary deportation by the Commission onimmigration and Deportation and shall be permanently barred from re-entering the country without the specialpermission of the President of the Philippines.

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erected standards to ensure the reasonableness of the judicial legislation. But wecan search the decision in vain for any concrete basis for the damage to Dusit Hotelresulting from the presence of employees sporting short hair. According to theCourt, “[t]he appearances of the Hotel employees directly reflect the character andwell-being of the Hotel, being a five-star hotel that provides service to top-notchclients. Being bald or having cropped hair per se does not evoke negative or unpleasantfeelings. The reality that a substantial number of employees assigned to the foodand beverage outlets of the hotel with full heads of hair suddenly decided to come towork bald-headed or with cropped hair, however, suggests that something is amissand insinuates a sense that something out of the ordinary is afoot. Obviously, theHotel does not need to advertise its labor problems with its clients.”34 This is partiallytrue, and what is missing is, unfortunately, what also happens to be the mostimportant.

The hotel certainly has some right over the way its employees appear especiallygiven the enterprise in which it is engaged. But this is only the beginning of theanalysis, not the end. The hotel needs to establish several things: first, evidence thatcustomers noticed something was in fact “amiss.” That the Court itself said thatwearing short hair does not per se evoke “unpleasant feelings” means that the hotelmust supplement its claim with evidence of negative reactions on the part of customers.This is even more relevant considering that hotels, by the nature of their business,cater to transients. Permanent residents of a locality might be more sensitive toradical changes in the way their neighbors look, but those who stay in hotels generallyhave no expectation of consistency in the looks of the employees that assist them.Second, the hotel should establish that the reaction of the customer was in fact negative.There are many ways of reacting to the novelty of seeing a good number of short-haired hotel employees—it might be that customers would think that this was pursuantto a new hotel policy; it might be curiosity, which may or may not lead to inquiry; incase they inquire, it might be sympathy or lack of sympathy; or they might show astunning lack of interest. In the absence of a negative reaction, we cannot evenbegin to speak about whether the hotel suffered as a consequence of the concertedaction. Third, the hotel must be able to establish damage, whether reputational orotherwise. Because the equivalence rests on the assumption that employees whoshow up for work to sabotage the employer are no different from those who stopworking, it is indispensable that the employer is actually able to establish the damageand its extent. In the absence of material damage, the equivalence fails and theCourt cannot consider the employees to have engaged in a strike. But because theCourt actually does so in NUWHRAIN, we now have this dangerous equivalence as astanding precedent.

So far, what I have done is focus on the doctrinal implications of this newunderstanding, limiting the analysis to its effect on existing jurisprudence and withno reference to an external or policy critique. This is intentional, as my purpose isto show that the decision is faulty not only (ultimately) from an external perspective

34 Id, at 613.




but also from an internal one. The use of doctrinal tools to study the case is meantto establish that, by the very terms of the current jurisprudence, the Court hasveered away from settled understanding and quite dangerously so given its loosetreatment of the equivalence between striking and working with the intention ofpublicizing one’s disagreements with an employer. In the next section, I try to pushfurther this analysis by introducing a constitutional angle, in the form of an analogy,to this case. In sum, the idea is to look at the concerted action of the employees asa form of expression that is subject to some protection by the legislature, if not theconstitution. This completes the picture I presented in the introduction which dealtwith the public nature of labor law, and sets up the conclusion that workers have ananalogous right to engage in certain types of protected speech, with the correlativeinsight that any form of regulation to sanction such expression should be subjectedto some higher standard of scrutiny.

Labored Speech

I introduced this article with a discussion of the old critique about the wobblydichotomy between the categories public and private in general, and in particular inthe case of labor legislation. The purpose of this introduction was to establish thepossibility of borrowing public law-type of analysis in private law, in the hope ofexpanding the parochialism of purely doctrinal critique and establishing the linkbetween policy and doctrine. At the same time, the technique of analysis that followsis itself doctrinal, only this time focusing on constitutional law as applied to laborrelations. This itself should allow for a wider lens with which to view the facts ofNUWHRAIN, as constitutional law is more openly embracive of resorts to policythan labor law. Thus, in a limited sense, the section that follows is an externalcritique.

Speaking but not speaking. Free speech is traditionally understood as the right tospeak freely with the use of the word, whether through speech or in writing.35 Inaddition, as part of the Bill of Rights, it is considered an important item in thatbasket of legal shields and swords the citizen can use against the State. It is thusgenerally held that the Bill of Rights mediates the relationship between State andcitizen, but not between citizen and citizen.36

The understanding that speech is about speaking and writing turns out to bevery difficult to operationalize in cases that clearly involve expression, though notwith the use of traditional implements such as the voice box or paper. For while it istrue that the stereotypical manifestation of free speech is and has been aboutpublishing one’s thoughts in speech or writing, it does not exhaust the possibilitiesfor the creative use of the right. It is in these cases where the tug-of-war between theState and the citizen becomes more interesting. The reason for this is that whenever

35 Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (1970).

36 See People v. Marti, 193 SCRA 57 (1991).

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the citizen engages in a traditional form of expression the State is held to a very highstandard of justification for its attempts to regulate the content of that expression.Be it the incitement37 or the clear and present danger38 test, the State will find itscase very difficult to win, given that content-based regulations raise a lot of judicialsuspicion.39 Most importantly, because traditional forms of expression usually donot use any medium within the control of government, regulators are left with nothingto regulate other than the content of the expression itself and thus without anyplausible justification to intrude.

However, the case is different when the speaker decides to use a regulatedmedium such as the airwaves40 and certain public places41 or when the expression istied to an act that may itself be subject to regulation.42 A species of the latter set ofcases involve so-called symbolic speech or expression that is in the form of an actthat does not make use of the voice box or writing device. In the United States,jurisprudence has developed with respect to these forms of expression, the effect ofwhich has been the creation of a test for content-neutral forms of regulating speechwith action components. Because these situations sometimes involve matters inwhich the government has some right to regulate, the test focuses not on the contentof the act (which is still considered an expression) but on the legitimacy of thegovernment’s regulation of the non-speech component of the act.

The classic cases involving symbolic speech are those relating to the expressionof anti-war advocates: United States v. O’brien43 and Texas v. Johnson.44 The O’briencase, after which the so-called O’brien test was named, involved resistance againstthe draft in the form of the destruction of the draft card. In some ways similar toAguinaldo’s act of tearing of the cedula, the destruction of the draft card was meantto dramatize the quasi-slave status of a draftee. It so happened that in the case ofMr. O’brien, the congress amended the draft statute in order to penalize preciselysuch an act of destruction. Convicted for tearing his draft card, O’brien argued thathis act was speech protected by the First Amendment which, in turn, covers“communication of ideas by conduct.”45 The U.S. Supreme Court, while recognizing

37 Brandenburg v. Ohio, 395 U.S. 444 (1969), at 447: “The constitutional guarantees of free speech and free press donot permit a State to forbid or proscribe advocacy of the use of force or of law violation except where suchadvocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce suchaction.”

38 Schneck v. United States, 249 U.S. 47 (1919); Dennis v. United States, 341 U.S. 494 (1951).

39 See Boos v. Barry, 485 U.S. 312, 334 (1988); Burson v. Freeman, 504 U.S. 191 (1992); Miami Herald Publishing Co.v. Tornillo, 418 U.S. 241 (1974).

40 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Red Lion Broadcasting Co. v.Federal Communications Commission, 395 U.S. 367 (1969).

41 See Bayan v. Ermita, supra note 2; Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Clark v.Community for Creative Non-Violence, 468 U.S. 288 (1984).

42 See Virginia v. Black et al., 538 U.S. 343 (2003); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. Larue,409 U.S. 109 (1972); Schneider v. State, 308 U.S. 147 (1939).

43 391 U.S. 367 (1968).

44 491 U.S. 398 (1989).

45 O’brien, supra at 376.




the speech component of the act, also held that the government had legitimatejustification for criminalizing the intentional destruction of the card. As a form ofcompromise, it formulated what has become the canonical standard for scrutinizingcontent-neutral regulation. In essence, it is a level of scrutiny lower than strict scrutinybut higher than mere rational basis standard. The O’brien test holds that agovernment regulation is sufficiently justified—

(a) if it is within the constitutional power of the Government;(b) if it furthers an important or substantial governmental

interest;(c) if the governmental interest is unrelated to the

suppression of free expression; and(d) if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtheranceof that interest.46

The test is meant to strike a balance between the intertwined interests of thegovernment over a particular object or medium, and the free speech rights of aspeaker. In operation, the O’brien test is a way to determine (1) whether or not theregulation is directed at speech, and (2) if not so directed at speech, whether theregulation is justifiable even if it incidentally burdens speech. The consequence isthat, if the regulation mainly targets the expressive content itself, the O’brien test isinapplicable even if the government may have some justifiable reason for passingthe statute involved. This is exactly the case in Texas v. Johnson which involved theconstitutionality of the petitioner state’s proscription against the “desecration of avenerated object.”47 In this case, Gregory Lee Johnson was prosecuted for desecratingthe American flag, which he burned on the occasion of the Republican NationalConvention in 1984. He challenged the constitutionality of the statute on the groundthat he was engaged in symbolic speech. The U.S. Supreme Court upheld his claimand held that the statute was content-based,48 which meant that the preservation ofthe flag as a symbol of nationhood and national unity, while commendable, couldnot be enforced through the criminal justice system without infringing free speechrights. It therefore subjected the State’s asserted interest in preserving the specialsymbolic character of the flag to the most exacting scrutiny.49

Symbolic speech in labor relations. While private corporations such as Dusit Hotelare generally entitled to greater protection from government intrusion than are

46 Id, at 377.

47 Johnson, supra at 400.

48 According to the Court, “Johnson was prosecuted because he knew that his politically charged expressionwould cause ‘serious offense.’ If he had burned the flag as a means of disposing of it because it was dirty or torn,he would not have been convicted of flag desecration under this Texas law; federal law designates burning as thepreferred means of disposing of a flag ‘when it is in such condition that it is no longer a fitting emblem fordisplay,’ …and Texas had no quarrel with this means of disposal. The Texas law is thus not aimed at protectingthe physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairmentsthat would cause serious offense to others.” Id, at 411.

49 Id, at 412.

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public corporations, there are several reasons that justify applying, by analogy, theconcept of symbolic speech and the test that comes with it, in the field of laborrelations—

First, the special consideration given by the Constitution to labor. Therelationship between labor and capital has never been accepted in this jurisdictionas purely a matter of contract. Special regard has always been given, both at thelevel of the Constitution and of the law, to the position of labor given the radicalinequality of its position in comparison with capital. Unlike many areas of privatelife that have been left untouched by the Constitution, labor law has traditionallybeen the specific target of constitutional norm-building. Doubtless this has to dowith the problem of insurgency in the Philippines which has been viewed generallyas rooted in the oppressed status of labor.

Second, the regulatory history of the Philippines. As a jurisdiction with a longhistory of colonialism, it is understandable that the standard relationship betweenthe public and the private will be one characterized by a longstanding tendency towardsregulation. Unlike in the United States where government intrusion into privatematters has traditionally been suspect both on pragmatic and ideological grounds,regulation in the Philippines through the use of police powers has generally beenheld sufficient to tilt the balance in favor of expansion of public powers.

This is emphatically the case in respect of strikes, a highly regulated area oflabor law. The ability to strike is a creation of law. By refusing to work, the workersare actually expressing their dissatisfaction over the economic conditions of theirwork. The traditional liberal response for this is that those unsatisfied with theconditions of their employment should pack up, leave, and find themselves anotherjob. Through the recognition of the workers’ right to strike, the law recognizes theright of the workers to retain their employment while pressuring the employer togive in to their demands, and in the meantime allowing strikers to impair theemployer’s operation and inflict damage. We may perhaps even go so far as to saythat the right to strike is an implicit recognition of the employees’ investment in theemployer’s enterprise, and that striking is merely a tool by which these investors areable to eke out their fair share of the profits of the business.

Third, the close relationship between striking and speaking. The legal recognitionof the right to strike is more than just a grant of the power to stop working andimpair the employer’s business. It is also about the power to publicize certain aspectsof the relationship between the employees and the outfit that they serve. Whenemployees strike, they do not simply stop working. They usually engage in a publicrelations war with the employer through picketing, leafleting, and other means ofcommunicating their economic concerns. In a way, this is equivalent to the right ofthe citizen to petition the government for redress of grievance.50

50 CONST. art. III, §4; See De la Cruz v. Court of Appeals, 265 SCRA 299 (1996); Bangalisan v. Court of Appeals, 276SCRA 619 (1997) ; Luzviminda De La Cruz v. Court of Appeals, 305 SCRA 303 (1999); Alipat v. Court of Appeals,308 SCRA 781 (1999); Everdina Acosta v. Court of Appeals, 334 SCRA 486 (2000).




A strike is not narrowly confined to the affairs between the employer and theemployees. Picketing and leafleting are in fact public demonstrations of the economicenvironment in a particular business. Striking employees do not only appeal to theowners of the firm; they are, in a real sense, also presenting their case to the public.In some ways, this relationship mimics that of the state and its citizens. Whenemployees strike, they are in effect demanding a reconfiguration of their economicrelations with the employer. In other words, they are engaging the employer in abattle for the terms of sharing of the wealth of the firm. Viewed in this light, itbecomes easier to acknowledge the parallelism between the situation of strikingemployees and citizens engaging in expressive activities and petitioning thegovernment for redress of grievances.

If citizens are allowed to express themselves in symbols and are protected bythe Constitution through the O’brien test, and the justifications offered aboveestablish a plausible equivalence between speaking and striking, then the Courtshould be able to apply the same test insofar as the evaluation of the employer’sability to sanction employees for their symbolic speech is concerned. I argue thatthis analogous application provides the Court with a better template for regulatingthe relationship between the employer and employees in this area of concern,especially given the strong normative concern of the Constitution towards labor.

Cropped-hair As Symbolic Speech. Applying the O’brien test to weigh thejustification for sanctioning the union employees involves fitting the elements of thestandard to the actions of the employer in relation to what the employees did. Thisis a rather straightforward process, the goal of which is to articulate and highlightthe reasonableness of the action of the employer in penalizing the employees fortheir concerted action which did not involve stoppage of work. For purposes ofapplying the test, we can restate the O’brien test in the following terms—

Corporate regulation of employee’s conduct is reasonable:

(a) if it is within the corporate powers of the business;(b) if it furthers an important or substantial business

interest;(c) if the regulation is unrelated to the suppression of free

expression; and(d) if the incidental restriction on alleged freedoms of the

employees is no greater than is essential to thefurtherance of that interest.

Does Dusit Hotel have the power to sanction union members for sportingcropped hair? Following the amended O’brien test—

(a) Does Dusit Hotel have the power to enact regulations controlling the waytheir employees look? Yes. It is generally conceded that the employer, especiallyone in the service sector, has the regulatory capacity to control the way its employees

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look through devices such as a dress code, uniform, etc. and this includes havingsome control over the way parts of the body are presented, as in this case, throughthe Hotel’s grooming standards.

(b) Does Dusit Hotel’s grooming standards further its corporate interest? Yes.Dusit Hotel’s reputation rests heavily on two things—(1) the quality of the hotel’sbuilding and facilities and (2) the kind of service offered by the management throughits staff. The ability of hotels to provide service is immediately judged on the basisof the way the staff relates to its customers, and part of this performance is not onlylimited to carrying bags, saying customary niceties, giving directions, providing foodand other hotel comforts. This performance also includes the visual presentation ofthe staff to the clients to create a distinctive and pleasing impact. The use of groomingstandards to control this visual presentation is legitimately part of the hotel’s attemptto further its corporate interests.

(c) Are the grooming standards, as applied to the collective action of theunionists, unrelated to their expression? No. In this case “free expression” relatesto the right of the employees to legitimately air their grievances in a manner thatdoes not amount to stoppage of work and does not result in damage to the employer.The fact that they are employees does not, by itself, impair their right to speak.Consider, for example, the action of an employee, or the union itself, in setting up ablog to report on the failed negotiation with Dusit Hotel. So long as no defamatorymaterials are involved and she is not so contractually bound, a strong argument isavailable for the position that the employee or the union is within her or its right inreporting and expressing sentiments about the failed negotiation.

If it is accepted that the union, as an entity recognized by the labor code, orthe employee, has the right to engage in expressive activities that do not impairtheir functions, then it becomes apparent that the sole basis of the sanction imposedby the hotel is to suppress the expressive activity of the employee or the union. Ofcourse, this does not automatically mean that the employer is at fault or that theexpressive activity is immune from regulation. The finding that the groomingstandards, as imposed in the specific case of the hotel employees wearing croppedhair, are directed at the content of the expressive activity only means that the employeris held to a higher standard of justification for imposing the sanction. Its implicationin this case is that the content-based regulation, as applied, must be justified on theground that there is evidence of damage on the part of the hotel as a consequence ofthe expression being communicated, if at all it was so conveyed.

Pursuant to this analysis, Dusit Hotel must establish the following evidence:(a) that the employees engaged in collective action; (b) that the intention was toimpair the reputation of the hotel; (c) that such intention was communicated to theguests of the hotel; (d) that, as a consequence of the communication, the guestsadversely reacted; and (e) the hotel suffered materially from this adverse reaction interms of impaired goodwill and reputation or reduced sales.




Compare this heightened standard with the decision of the Court and oneimmediately sees how casually the Court treated the rights of the employees to airtheir grievances in nonviolent form. Notice that in the decision, the Court threecrucial, ungrounded assumptions: (a) that the intention of the members of the unionwas to impair the business of the hotel by sporting short haircut; (b) that such intentionwas so communicated to the clients of the hotel; and (c) that damage to the hotel’sreputation or finances ensued as a consequence of the collective action.

(d) Is the incidental restriction on alleged freedoms of the employees no greaterthan is essential to the furtherance of that interest? No. In fact, the restrictionamounts to a severe penalty in the form of expulsion or suspension from one’semployment which in effect is an injunction against expression. One can encapsulatethe cost of freedom in this case by saying that because some of the unionists decidedto cut short their hair, they eventually cut short their employment. This is anastoundingly stiff sanction and an unfair equivalence especially considering that thosewho bore the brunt of the sanction were the union leaders. This penalty producesthe greatest possible chilling effect on the right of unionists, especially their leaders,to bring to bear the power of nonviolent expression into the negotiating table.

Applying the re-modeled O’brien test to the situation at bar, we can see howpotent the test is in terms of its ability to articulate the details of similar cases inrelation to the larger policy questions involved. The great advantage of the test, asone can readily see, is that it forces the Court to weigh the competing claims of theparties not at a speculative level but at a factual level. Using this demand for adetailed articulation, one could make the two-pronged argument that because thesanction imposed by Dusit Hotel was directed solely at the expressive content of theemployees’ cropped hair and that the interest sought to be protected by the hotel—prevention of damage to its reputation and goodwill—was not fully shown to havebeen placed in any concrete danger of impairment, the termination of the services ofthe employees was unwarranted.

Conclusion

The policy question that NUWHRAIN presents is this: how should the courtsdraw the line between protected and unprotected speech in the workplace in thecontext of a contentious collective bargaining negotiation? This is a very importantquestion of policy given the competing recognition of the importance of capital andlabor in the Constitution and the historical tension between them in Philippine society.One the one hand, employers have the right to protect their rights to propertywhich includes the power to control, to a certain extent, both the expression and theappearance of those under their employ; on the other, the contract of employmentdoes not transform employees into unthinking subjects with no capacity to expressthemselves especially in matters that relate to their welfare. Demarcating this lineserves to notify both employers and employees of the rules of the game of economic

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Florin T. Hilbay

resource management in the context of the desire of employees to attain dignitywhile serving the interest of capital.

In this article, I have sought to critique the fundamental assumptions by theNUWHRAIN Court primarily by highlighting the analogously constitutionaldimensions of the facts of the case. My conclusion is that the Court played it looseby simultaneously equating the actions of the employees with temporary stoppageof work—strike—and turning a blind eye to the non-violent, expressive content ofsuch actions. Constructively, I propose that the court use the O’brien Test in similarcases in order to provide a more detailed justification for sanctioning or penalizingexpression by organized labor. The function of the test is precisely to compel judgesto articulate more clearly their assumptions that will ultimately serve both employersand employees with more concrete guidelines for determining the legality of theiractions.

� �


The Legal Regime Governing the Export of Filipino Workers

The Legal Regime Governing

the Export of Filipino Workers*

Patricia R.P. Salvador Daway**

I. Introduction

United Nations Secretary-General Ban Ki-Moon encapsulates not only the sagabut also the significant contributions of Migrant Workers in the following manner:

For decades, the toil of solitary migrants has helped lift entire families andcommunities out of poverty. Their earnings have built houses, provided health care,equipped schools and planted the seeds of business. They have woven together theworld by transmitting ideas and knowledge from country to country. They haveprovided the dynamic human link between cultures, societies and economies. Yet, onlyrecently have we begun to understand not only how much international migrationimpacts development, but how smart public policies can magnify this effect.

Indeed, migration is a phenomenon, the importance and extent of which,affecting as it does huge numbers of people the world over cannot be overemphasized.

In any country where opportunities for employment available to its ever-growingpopulation are rather scarce, the natural reaction is for the unemployed and eventhe underemployed to look for the proverbial greener pastures abroad. It has beenobserved that the “natural progress of things toward improvement” is a naturalconsequence of “the uniform, constant and uninterrupted effort of every man tobetter his condition.”1 More succinctly “(I)n every human being, there is a wish toameliorate his own condition.”2 Translated into more concrete terms, there is the“constant effort of most families to give their children a ‘better start’ than theyenjoyed themselves.”3

The Philippines has over eight (8) million overseas Filipinos in over 175countries and territories worldwide, comprising about ten percent (10%) of the

* A paper presented at the Regional Seminar on the Protection of Foreign Workers in Asia Taiwan Labor LawAssociation November 21-22, 2009 Taipei, Taiwan.

** Associate Dean, University of the Philippines College of Law and Supervisor, University of the Philippines LawCenter.

1 Adam Smith, Wealth of Nations, Book II Chapter III.

2 Henry Hazlitt, The Conquest of Poverty, New York Foundation for Economic Education 1996 (1973) p. 159,quoting History of England, Thomas Babington Macualay.

3 Ibid, p. 160.

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Patricia R.P. Salvador Daway

Philippine population and 20 percent (20%) of the labor force.4 The latest census(July 2009) on Philippine population indicates a total of 97,976,603 Filipinos and todate, and the deployment average is 3,377 workers a day.

The biggest issue which has bedeviled Overseas Filipino Workers (OFWs, forbrevity) is their vulnerability to oppression and exploitation and all kinds of abuses.This raises the question of sufficiency of the laws and programs that the Philippineshas in addressing the same. Moreover, the effects of migration are not limited to theOFWs themselves but extend to the social costs on the families that they leavebehind, and to the country as a whole considering its reliance on remittances fromOFWs.

This paper will give a general background of the labor sector in the Philippines,before proceeding to the legal framework governing the deployment of OFWs andthen, the effects of the OFW phenomenon.

II. General Background

A. The Labor Scene In The Philippines

The official Labor Force Survey reveals that the number of unemployed personsas of July 2009 was estimated at 2.9 million. This translates to an unemploymentrate of 7.6%. The survey indicates that “[o]f the estimated 59.5 million population 15years old and over in July 2009, about 38.4 million persons were reported to be inthe labor force. This translates to a labor force participation rate (LFPR) of 64.6percent […] Of the estimated 35.5 million employed persons in July 2009, more thanhalf (51.5%) worked in the services sector with those employed in wholesale andretail trade, repair of motor vehicles, motorcycles and personal and household goodssub-sector comprising the largest sub-sector (18.9% of the total employed). Workersin the agriculture sector accounted for 33.6 percent of the total employed, withworkers in agriculture, hunting and forestry making up the largest sub-sector (29.5%of the total employed). Only 14.8 percent of the total employed were in the industrysector. Among the various occupation groups, laborers and unskilled workerscomprised the largest proportion (33.0%) of the total employed population. Farmers,forestry workers and fishermen were the second largest group, accounting for 16.2percent of the total employed population.”5

The same survey reports that employed persons can be categorized into: wageand salary workers, own account workers and unpaid family workers. Wage and salary workers,which comprised 55% of the employed persons work for private households, private

4 L. Cadapan, “Fast Facts on Filipino Labor Migration,” Kanlungan Center Foundation, Inc. (Quezon City: 1999)7-9

5 Census Press Release, taken from http://www.census.gov.ph/data/pressrelease/2009/1f0903tx.html, accessedon November 12, 2009



establishments, government or government corporations and in own-family operatedfarm or business. Own-account workers comprised 33.9% while unpaid family workerscomprised 10.8%. Those working for private establishments comprised the largestproportion, 40.8% while government workers including those working for governmentcorporations comprised only 8.3 percent of the total employed. While workers inprivate households comprised 6.0%, the own account workers or self-employedcomprised the majority (29.5% of total employed).6

The survey classifies employed persons as either full-time workers or part-time workers. While full-time workers work for 40 hours or more, part-time workerswork for less than 40 hours. As of July 2009, approximately 23.0 million employedpersons (64.9%) were working full time, while 34.1% of the total employed workedpart-time.7 With respect to underemployed persons or those who express the desireto have additional hours of work in their present job or to have additional job or tohave a new job with longer working hours, the survey estimates them at 7.0 millionas of July 2009, placing the underemployment rate at 19.8%. The survey notes thatmost of the underemployed were working in the agriculture sector (44.1%) and servicessector (40.3%) with those in the industry sector accounting for 15.6%.8

As regards educational groups, the high school graduates comprised morethan one-third (33.0%) of the unemployed, the college undergraduates comprisedabout one-fifth (21.5%), while the college graduates was estimated at 19.7%.”9

However, data from the private sector paints a slightly different picture.According to the Social Weather Station, a highly reputable private non-stock,nonprofit social research institution, “[u]nemployment reached a record high of 34.2percent in February[…] This means an estimated 14 million were unemployed, aconsiderable rise from the previous quarter’s 27.9 percent or estimated 11 millionadults, according to the SWS’s First Quarter 2009 survey.”10

B. The Rationale Behind Migration

1. On the part of the migrant workers

In the article aptly entitled “Why Filipinos Prefer to Work Abroad”11 the writeropines that “[t]he unstable economic and political situation in the Philippines is oneof the major causes why most educated and highly skilled Filipinos prefer to work

6 Ibid.

7 Ibid.

8 Ibid.

9 Ibid.

10 SWS survey: Unemployment rate now at 34.2%, Philippine Daily Inquirer, First Posted 05:31:00 05/13/2009,taken from http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090513-204696/SWS-survey-Unemployment-rate-now-at-342, accessed on November 12, 2009.

11 Why Filipinos Prefer to Work Abroad?, http://www.ofw-connect.com/myarticle/why_work_overseas.htm, accessedon November 12, 2009.

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abroad. Filipino workers could not see any hope from their leaders to achieveprosperity for the country.” Low salary rates is also a compelling reason. The writeradds that “[t]o get better education from reputable schools in the Philippines is notcheap for an ordinary Filipino but by the time a worker gets a job in the Philippines,he does not get paid enough to equal his investment on education. Due to this, mostFilipino skilled workers get jobs abroad where salary [is] commensurate [to] education,skills, and experience. Sometimes, an OFW can be paid more if he takes a blue-collar job even if he is a degree holder. That is why a lot of degree-holder Filipinoswork abroad as maids, sales ladies, construction workers and laborers. Most Filipinoswould work on any job as long as it is decent and high paying.”

The writer further avers that poor benefits offered in the Philippines is anotherreason for OFWs’ preference to work abroad. Thus, “[a] foreign-based company cangive benefits to employees such as housing, food allowance, medical or health care,dental care, paid leave, or even educational benefits for children but in [the]Philippines, it is very rare to be employed and get most of these benefits.”

2. On the part of the Philippine government

In a paper on OFWs and Overseas Migration Programs,12 it was brought tofore that “[m]igration is not wholly a personal decision motivated by desire forcapitalist accumulation, but also reflects the lack of development policies on thepart of the government and the lack of satisfactory living and employmentopportunities within the home country. […] [T]he government [has] deliberatelypromoted labor migration as a solution to unemployment and growing nationalaccounts deficits.” The view has been advanced that the reliance on OFW remittancesto boost the Philippine economy is the primary reason why the government supports,and institutionalizes, the deployment of Filipino workers abroad.

C. Actual situations of OFWs in receiving countries

According to Deployment Statistics13 of the Philippines Overseas EmploymentAdministration, the top ten destinations for both rehires and new hires in 2008 areas follows: 1. Saudi Arabia (28.3%); 2. United Arab Emirates (19.9%); 3. Qatar (8.7%);4. Hong Kong (8.0%) 5. Singapore (4.3%); 6. Kuwait (4.0%); 7. Taiwan (4.0%); 8. Italy(2.3%); 9. Canada (1.8%); and 10.Bahrain (1.3%). Deployment to other destinations isat 17.4%.

According to the same source, the top ten skills for new hires in 2008 are asfollows: 1. Household Service Workers (14.8%); 2. Waiters, Bartenders and Related

12 De Guzman, O. Overseas Filipino Workers, Labor Circulation in Southeast Asia, and the (Mis)management ofOverseas Migration Programs, taken from http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue3/article_281.html,accessed on November 12, 2009.

13 Overseas Employment Statistics, from http://www.poea.gov.ph/html/statistics.html, accessed on November 12,2009.



Workers (4.1%); 3. Charworkers, Cleaners (3.4%); 4. Professional Nurses (3.4%);5. Caregivers and Caretakers (3.0%); 6. General Laborers/Helpers (2.9%); 7. Plumbersand Pipe Fitters (2.9%); 8. Wiremen-Electrical (2.6%); 9. Welders and Flame-Cutters(2.0%); and 10. Building Caretakers (2.0%). Newly-hired OFWs engaged in other skillsare placed at 58.9%.

As of 2008, Landbased OFWs comprise 78.83% (New hires at 30.50% andRehires at 48.33%), while Seabased OFWs comprise 21.17%. As earlier stated, thedaily deployment average is 3,377 workers. Of the new hires, 174,928 are male and163,338 are female.

D. The methods of their recruitment

Article 18 of the Labor Code bans direct hiring by providing that: “No employermay hire a Filipino worker for overseas employment except through the Boards andentities authorized by the Secretary of Labor.” This means that the hiring of OFWsmust be coursed through the Philippines Overseas Employment Administration(POEA) or through (a) private employment agencies or (b) private recruitment entitieswhich, pursuant to national development objectives, may be allowed under the lawto participate in the recruitment and placement of workers. Such participation willbe subject to guidelines as may issued by the Secretary of Labor. (Labor Code,Articles 12[f], 13 [c] [d] [e] [f], 14 [a] and 25)

The Labor Code regulates private sector participation through requirementspertinent to capitalization, registration fees, bonds and other licensing and reportorialrequirements (Labor Code, Arts. 26-33).

III. Legal FRAMEWORK

A. Major Statutes Governing The Protection Of Ofws

The primary statute governing labor standards and labor relations in thePhilippines is the Labor Code which is a consolidation of labor and social laws. TheCode is meant to afford protection to labor, to promote full employment, to ensureequal work opportunities regardless of sex, race or creed and to regulate the relationsbetween workers and employers. It is also intended to promote human resourcesdevelopment and to insure industrial peace based on social justice. Likewise, thePhilippines has a “Migrant Workers and Overseas Filipinos Act of 1995” (RA 8042),which institutes the policies of overseas employment and establishes a higher standardof protection and promotion of the welfare of not only the migrant workersthemselves but likewise, their families and for that manner, other overseas Filipinoswho are in distress.

Most significant in the Labor Code and in the Migrant Workers Act are theprovisions which penalize illegal recruitment.

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Under the Labor Code,14 any recruitment activities undertaken by non-licenseesor non-holders of authority are illegal and punishable. It further provides that illegalrecruitment, when committed by a syndicate or in large scale, shall be considered anoffense involving economic sabotage. The Migrant Workers Act15 broadens the scope

14 Art. 38. Illegal recruitment.

a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code,to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishableunder Article 39 of this Code. The Department of Labor and Employment or any law enforcement officermay initiate complaints under this Article.

b. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offenseinvolving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or morepersons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction,enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed inlarge scale if committed against three (3) or more persons individually or as a group.

c. The Secretary of Labor and Employment or his duly authorized representatives shall have the power tocause the arrest and detention of such non-licensee or non-holder of authority if after investigation it isdetermined that his activities constitute a danger to national security and public order or will lead tofurther exploitation of job-seekers. The Secretary shall order the search of the office or premises andseizure of documents, paraphernalia, properties and other implements used in illegal recruitment activitiesand the closure of companies, establishments and entities found to be engaged in the recruitment ofworkers for overseas employment, without having been licensed or authorized to do so.

15 SECTION 6. Definition. — For purposes of this Act, illegal recruitment shall mean any act of canvassing,enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contractservices, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, asamended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee ornonholder who, in any manner, offers or promises for a fee employment abroad to two or more persons shallbe deemed so engaged. It shall likewise include the following acts, whether committed by any person, whethera non-licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule ofallowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay anyamount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation forthe purpose of securing a license or authority under the Labor Code;

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer himanother unless the transfer is designed to liberate a worker from oppressive terms and conditions ofemployment;

(e) To influence or attempt to influence any person or entity not to employ any worker who has not appliedfor employment through his agency;

(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or tothe dignity of the Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his dulyauthorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreignexchange earnings, separation from jobs, departures and such other matters or information as may berequired by the Secretary of Labor and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by theDepartment of Labor and Employment from the time of actual signing thereof by the parties up to andincluding the period of the expiration of the same without the approval of the Department of Labor andEmployment;

(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Boardof any corporation engaged in travel agency or to be engaged directly or indirectly in the management ofa travel agency;

(k) To withhold or deny travel documents from applicant workers before departure for monetary or financialconsiderations other than those authorized under the Labor Code and its implementing rules andregulations;

(l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment; and

(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processingfor purposes of deployment, in cases where the deployment does not actually take place without theworker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered anoffense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or morepersons conspiring or confederating with one another. It is deemed committed in large scale if committedagainst three (3) or more persons individually or as a group.

The persons criminally liable for the above offenses are the principals, accomplices and accessories. Incase of juridical persons, the officers having control, management or direction of their business shall beliable.



of illegal recruitment by punishing specific acts of illegal recruitment regardless ofwhether or not the person committing such act is a licensee or a holder of authority.

Also of note in the Migrant Workers Act is its provision on deployment whichstates that: “The State shall deploy overseas Filipino workers only in countries wherethe rights of Filipino migrant workers are protected. The government recognizesany of the following as a guarantee on the part of the receiving country for theprotection and the rights of overseas Filipino workers: (a) It has existing labor andsocial laws protecting the rights of migrant workers; (b) It is a signatory to multilateralconventions, declarations or resolutions relating to the protection of migrant workers;(c) It has concluded a bilateral agreement or arrangement with the governmentprotecting the rights of overseas Filipino workers; and (d) It is taking positive,concrete measures to protect the rights of migrant workers (Section 4).”

B. The Philippine Constitution

Considering the inherent inequality between labor and capital, the framers ofthe fundamental law of the Philippines enshrined therein provisions which are aimedat leveling the playing field between them. Thus, the Constitution mandates theState to afford full protection to labor, whether based locally or overseas, organizedor unorganized. The Constitution likewise mandates the promotion of fullemployment and equality of employment opportunities for all.

Moreover, the Constitution guarantees the so-called seven primary or cardinalrights of all Filipino workers, to wit: (1) right to self-organization, (2) right to collectivebargaining and negotiations, (3) right to peaceful concerted activities, including theright to strike in accordance with law, (4) right to security of tenure, (5) right tohumane condition of work, (6) right to a living wage, and (7) right to participate inpolicy and decision-making processes affecting their rights and benefits as may beprovided by law.

In the fairly recent en banc decision of the Supreme Court of the Philippines, itwas held:

Our present Constitution has gone further in guaranteeing vital social and economicrights to marginalized groups of society, including labor. Under the policy of socialjustice, the law bends over backward to accommodate the interests of the workingclass on the humane justification that those with less privilege in life should havemore in law. And the obligation to afford protection to labor is incumbent not onlyon the legislative and executive branches but also on the judiciary to translate thispledge into a living reality. Social justice calls for the humanization of laws and theequalization of social and economic forces by the State so that justice in its rationaland objectively secular conception may at least be approximated. (Antonio M. Serranov. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., GR No. 167614;March 24, 2009)

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C. International Convention

The Philippines has signed and ratified the International Convention on theProtection of the Rights of All Migrant Workers and Members of Their Families.As such, the said convention forms part of the law of the land.16 As the title of theconvention suggests, protection is afforded not only to the migrant workersthemselves but to their families as well. It recognizes the principles and standardsembodied in international instruments concerning human rights in general andmigrant workers in particular. Included in the convention are employment rights,the right to freely choose employment, trade union rights, social security rights, theright to health, the right to housing, the right to family unity, the right to education,cultural rights, political rights, and residence rights.

In theory, such convention is able to give full protection to migrant workers.However, it is noticeable that most receiving countries have not ratified the convention.Of the top ten destinations of OFWs enumerated previously, none has signed orratified to date.17 This implies that the receiving countries are not amenable to theidea of extending full protection and benefits to migrant workers. The problem ofthe protection of these workers remains in the absence of ratification of the receivingcountries.

D. Government Agencies in Charge of OFWs

1. Department of Labor and Employment (DOLE)

The DOLE is the primary government agency mandated to promote gainfulemployment opportunities, develop human resources, protect workers and promotetheir welfare, and maintain industrial peace.18

2. Overseas Workers Welfare Administration (OWWA)

The OWWA is an attached agency of the DOLE. It is the lead governmentagency tasked to protect and promote the welfare and well-being of OFWs and theirdependents. Its two-fold mandate is to deliver welfare services and benefits, and toensure capital build-up and fund viability. Among its objectives are to: protect theinterest and promote the welfare of OFWs in recognition of their valuable contributionto the overall development effort; facilitate the implementation of the provisions ofthe Labor Code concerning the responsibility of the government to promote the

16 Section 2 of Article II of the Philippine Constitution states that “The Philippines […] adopts the generallyaccepted principles of international law as part of the law of the land.”

17 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en, accessed onNovember 15, 2009.

18 Agency Profile from http://www.dole.gov.ph/profile/, accessed on November 12, 2009.



well-being of OFWs; provide social and welfare services to OFWs, including insurance,social work assistance, legal assistance, cultural services, and remittance services;ensure the efficiency of collection and the viability and sustainability of the fundthrough sound and judicious investment and fund management policies; undertakestudies and researches for the enhancement of their social, economic and culturalwell-being; and develop, support and finance specific projects for the welfare ofOFWs.19

3. Philippine Overseas Employment Administration (POEA)

The POEA is tasked to regulate private sector participation in the recruitmentand overseas placement of workers by setting up a licensing and registration system.It is also tasked to formulate and implement, in coordination with appropriate entitiesconcerned, when necessary, a system for promoting and monitoring the overseasemployment of Filipino workers taking into consideration their welfare and thedomestic manpower requirements. In addition to its powers and functions, the POEAis tasked to inform migrant workers not only of their rights as workers but also oftheir rights as human beings, to instruct and guide the workers how to assert theirrights and provide the available mechanism to redress violation of their rights.20

E. NGOs

The Philippine Constitution institutionalized the so-called “non-governmental,community-based or sectoral organization” that promotes the welfare of the nation,encouraging its formation under Article II, Sec. 23 thereof.

Accordingly, there are at present numerous non-governmental organizations(NGOs) which focus on providing protection and assistance to migrant workers.

The NGOs protect rights of not only OFWs but also, of Filipino immigrantsand their families as well as promote their welfare consistent with the Constitutionalmandate. These help improve the politico-socio-economic conditions of OFWsthrough policy advocacy, information dissemination, networking, capacity buildingand direct assistance. Examples of these NGOs are the Center for Migrant Advocacy– Philippines (CMA) and the Katipunan ng Migranting Pilipino, Inc. (Japan). CMA isengaged in the gathering of information, conduct of studies on overseas migrationand related concerns and information dissemination, among others.

Kapisanan has been providing direct assistance to OFWs and their familiesincluding legal assistance to those faced with complaints which may lead to thecancellation of their working visas and eventually, their deportation from the country

19 About OWWA from http://www.owwa.gov.ph/index.php?page=about-owwa, accessed on November 12, 2009.

20 Section 23 of the Migrant Workers Act, as amended by RA 9422.

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of employment. It has also been documenting the cases of Japan-based OFWs whoreceived assistance from Kapisanan.

F. Memoranda of Understanding with Foreign Countries

In an article21 posted on the website of the Office of the President, it was saidthat former President Gloria Macapagal-Arroyo’s international engagements havebrought about several hiring agreements with foreign countries. It stated that amongthe countries that the President visited and which committed to hire more Filipinoprofessionals and skilled workers are Qatar, Saudi Arabia, Canada, Australia, andJapan. The DOLE reported that the Philippine Government entered into a bilateralagreement with South Korea on the employment of Filipino overseas workers andthat the Memorandum of Understanding signed between the DOLE and its Koreancounterpart in May 2009 provided for the hiring of 5,000 Filipino workers in theKorean manufacturing industry and other sectors within the next ten months.

The Philippines likewise entered into MOUs with Alberta, Manitoba, BritishColumbia and Saskatchewan. The common purpose of these MOUs is to clarify andarticulate the participants’ intentions to promote and strengthen areas of cooperationin the fields of labor, employment and human resource deployment and development.However, these MOUs are not legally binding on the parties. This must be soconsidering that Section 21 of Art. VI of the Constitution provides that “(N)o treatyor international agreement shall be valid and effective unless concurred in by atleast two-thirds of all the Members of the Senate.”

IV. Critical Assessment

Admittedly, the major advantage of sending workers abroad is financial, thatis, the inflow of remittances. The Department of Economic Research forecasts thatOFW remittances by the end of 2009 would amount to US$ 17.1 billion or a growthof 4% from the end-2008 level despite the global economic crisis. University of thePhilippines Prof. Randy David in his column22 published in the most widely circulatednewspaper in the country today, the Philippine Daily Inquirer, attributes this fixationwith remittances to the dire economic situation of the Philippines and the masspoverty among the people. David avers that “[l]ittle attention, if any, is paid to theproportion of OFW remittances that is set aside for investments in productivecapacity. Nor is the government creating meaningful opportunities for OFWs toinvest a good part of their earnings in entrepreneurial activity.” Moreover, “it has

21 Demand for Filipino workers abroad expected to hold up, 26 July 2009, from http://www.op.gov.ph/index.php?option=com_content&task=view&id=25740&Itemid=, accessed on November 12, 2009.

22 David. R., Overseas employment and its effects (in the Philippine Daily Inquirer, 07/18/2009), from http://opinion.inquirer.net/inquireropinion/columns/view/20090718-215995/Overseas-employment-and-its-effects,accessed on November 12, 2009.



led to the entrenchment of an economic strategy based on labor export that tends topreclude planning for the long-term development of the national economy.”

Remittances from workers abroad have become a short-term solution to theproblem of finances, not only at the level of the family but more so, at the nationallevel. This approach is problematic in that the Philippines does not seem to addressthe need to stabilize and improve internal employment conditions and opportunities.Reliance on deployment of workers abroad may pose problems in the future especiallyif the receiving countries get hit with financial crises which may lead them to lay offFilipino workers. True, we now live in a globalized world. But that does not precludethe necessity of strengthening internal programs especially when it comes to localemployment and internal economic sustainability.

Another serious concern attendant to the migration phenomenon is with regardto the families that are left behind, most especially the children. It has been reported23

that about nine million Filipino children under the age of 18 are left behind by oneor both parents to work tentatively or live permanently abroad (based on severalstudies done by non-governmental and government organizations). Although thequality of life, most importantly of the education, of OFWs and their families areimproved by remittances, migration also has its social cost in that in the absence ofthe parents, “technological mechanisms like cellular phones and computers havebecome the default substitute to personal parenting.” Such modes of communicationcannot, in any way, replace the relationship that is formed between the parent andthe child when the parent is physically present. The report further reveals thatmigration of parents is indeed heart-breaking for children, making them long forparental care, get confused over gender roles, be vulnerable to abuse, and evendevelop consumerist attitudes.” In the extreme, migration may lead to the OFWsabandoning their families in the Philippines altogether.24

As for the OFWs themselves, problems arise in the area of their protectionand welfare abroad. One of the most prevalent issues is imprisonment. It has beenreported in Inquirer.net25 that “[s]ome 3,000 Filipinos are in jail in different countriesaround the world, according to the Department of Foreign Affairs.” According tothe report, about 70% are detained on immigration-related charges, while the restare detained for common crimes, including theft and drug trafficking. Another concernare the cases OFWs who are abused or maltreated by their employers, usually womendomestic helpers who run away from their employers.

This is a manifestation of the lack of force and effect of the Philippine laws forthe protection of OFWs. As mentioned in a previous section, the Philippines is a

23 Tan, K.J.T., Leaving OFW children behind: Economic benefits vs social costs, from http://www.gmanews.tv/story/134430/leaving-ofw-children-behind-economic-benefits-vs-social-costs, accessed on November 12, 2009.

24 See, D.A., Cases of abandonment of OFW families rising, October 11, 2007, from http://mb.com.ph/node/38315, accessed on November 12, 2009.

25 Esplanada, J.E., 3000 Filipinos in jail overseas, from http://globalnation.inquirer.net/news/breakingnews/view/20091110-235374/3000-Filipinos-in-jail-overseasDFA, accessed on November 12, 2009.

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signatory, and has ratified, the ILO Convention on Migrant Workers. However, thelack of ratification on the part of receiving countries renders such conventionseemingly useless. Further reform must be made for the protection of migrant workers,not only on the national level, but also in the international sphere. Without suchinternational cooperation, the Philippines will continuously find itself helpless inprotecting its workers abroad since it will always be limited by its need to appeasethe receiving nations, as it is heavily reliant on remittances from these countries.

V. Conclusion

The problems facing OFWs are both in the national and international levels.They affect the OFWs themselves, the families they leave behind, and the countryitself. On the part of the OFWs, the lack of external cooperation leads to thecontinuous abuses and violation of rights of Filipino workers abroad, despite thebest efforts of the Philippine government to protect its workers. On the part of thefamilies left behind, the social cost of migration and separation are undeniable, ascan be seen in the fragmentation of families of OFWs. On the national level, theproblem of heavy reliance on foreign remittances prevails. At the end of the day, theeconomic standing of the Philippines relative to other nations is both the reason andthe end of the OFW phenomenon.

On the international level, the sheer magnitude of the number of migrantworkers making the exodus from their States of origin makes it apparent that Statesof employment, most of which are the affluent first world countries, have becomeincreasingly dependent on labor supplied by the struggling third world countrieslike the Philippines.

Despite this, States of employment have been reluctant, even unwilling, toaccept international standards concerning migrant workers’ protection. They fail tosee that it is basically a symbiotic relationship that exists. It is akin to a partnershipwhere both parties are obliged to contribute their share for the good of thepartnership, which in turn will redound to the benefit of both parties and not justone of them.

� �


Global Climate Change and Recent Developments

in Philippine Environmental Law

Global Climate Change

and Recent Developments


Myrna S. Feliciano*

1. Introduction

The Philippines is a climate hotspot, vulnerable to some of the worstmanifestations of climate change. As a developing country, with very little access tovital resources, it has a low ability to cope with disasters brought about by climatechange impacts. All over the world, the impacts of such warming are diverse andalarming. Manifestations include wide spread retreat of glaciers and decrease insnow cover, change in heat content and chemical composition of the oceans, increasein sea level and aspects of the extreme weather events such as droughts, heavy rains,floods and the intensity of tropical typhoons as well as tornadoes.1 Sea level risingthreatens coastal areas, island ecosystems and low-lying communities. Provincesthat are highly vulnerable to a 1-meter sea level rise include Zamboanga del Sur,Sulu and Palawan.2

Climate change impacts as an additional pressure that could exacerbate thehigh rate of species extinction of plants and animals and current degradation of thePhilippine ecosystem. Through our growing population, our thirst for naturalresources together with climate change could help carry off 20% to 30% of all speciesbefore the end of the century. Thus, shaping an Earth that will be biologicallyimpoverished.3

The United Nations – organized Intergovernmental Panel on Climate Change(IPCC), the foremost scientific authority on the issue, stated in its most recent reportthat there is “new and stronger evidence that most of the global warming observedover the last 50 years is attributable to humans.”4 Human activities that resulted ingreenhouse gas concentrations are primarily fossil fuel use, deforestation, land usechange and agriculture.

* Director, Mandatory Continuing Legal Education Office, Supreme Court of the Philippines; Professor II,Philippine Judicial Academy and Professorial Lecturer, University of the Philippines, College of Law.

1 Greenpeace, The Philippines: A Climate Hotspot; Climate Impacts, 1 (April 2007).

2 Ibid., p. 6.

3 Bryan Walsh, “The New Age of Extinction,” Time Magazine, April 13, 2009, p.32.

4 IPCC Fourth Assessment Report: Climate Change, 2007. Available at http://www.ipecich/ipccreports/index.htm.

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These greenhouse gases such as carbon dioxide (CO2), methane (CH

2), nitrous

oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur

hexafluoride (Sf6) produced by human activities cause the thinning of the ozone

layer which protects us from UV and the cosmic rays of outer space.5 For example,CFCs which are used as refrigerants and aerosol agents can release chlorine thatfurther reacts with oxygen some thousands times over. Particulates affect visibilityand health. Nitrogen when combined with water, ends up as acid rain.6 Methane isformed when organic waste is decomposed in the absence of oxygen, as in landfillsand dumpsites.

The alarm was raised because of the significant thinning of the ozone layerover Antarctica. These CFCs and other gases which were eventually carried by thewind currents into the ozone layer reacted with the ozone molecules and brokedown the gaseous umbrella at a rate faster they could be replenished, thus creatingholes in Antarctica, Europe and the Arctic, thus leading to global warming and globalclimate change.7

The impact of climate change specifically on the Philippines is disturbing becausewe have fewer resources to adopt. Our resources need special consideration due tothe country’s extreme vulnerability.8

According to a report in 2005:

“The Philippine sector most affected by climate change is agricultureand food security. The report also indicated climate effects on the healthsector because many of the biological organisms linked to the spread ofinfectious diseases are influenced by the fluctuations in climate variables.The infectious diseases include dengue fever, malaria, and cholera. Otherclimate change impacts include coral bleaching, fish kills, high mortalityof cultured giant clams and red tide. One of the most discernible effectsis the accelerated rise in sea level.”

. . .

Sea level rise due to thermal expansion is a threat to this country,given its archipelagic nature and long stretches of coast line. Rising sealevels may contaminate groundwater sources and expose communities toharsh storm surges.”9

5 See Vienna Convention for the Protection of the Ozone Layer, March 22, 1985. The Philippines ratified it onJuly 17, 1991. The Montreal Protocol on Substances That Deplete the Ozone Layer, September 16, 1987 asamended in London (1990), Copenhagen (1992),Vienna (1995), Montreal (1997) and Beijing (1999); KyotoProtocol, December 11, 1997 http://unfccc.int/kyoto_protocol/items2830, php Philippines ratified it onFebruary 16, 2005.

6 PHILIPPINE JUDICIAL ACADEMY, GREENING THE JUDICIARY, 12-3 (2005).

7 Ibid., p. 13.

8 ROMMEL J. CASIS (ED.), EXPERTS DIALOGUE ON PHILIPPINE CLIMATE CHANGE POLICY; MITIGATION AND ADAPTATION MEASURES,13 (2008) citing UNFCC Impacts, supra., note 4 at 5.

9 Ibid., p. 13, citing LEONCIO A. AMADORE, CRISIS OR OPPORTUNITY; CLIMATE CHANGE: IMPACT AND THE PHILIPPINES, 5-6(Greenpeace, 2005).




2. The Constitution and Global Treaties

The 1987 Constitution views the environment and natural resources fromthree perspectives: as a human rights concern, as a social justice concern, and as aresource allocation concern. The human rights concern is found in Article III,Section 1 which states that “No person shall be deprived of life, liberty, or propertywithout due process of law…” and in Article II, Section 16 which provides that “TheState shall protect and advance the right of the people to a balanced and healthfulecology in accordance with the rhythm and harmony of nature” as well as in ArticleII, Section 15 which states that “The State shall protect and promote the right tohealth of the people and instill health consciousness among them.”10

As a social justice concern, there is a constitutional bias in favor of subsistencefishers, farmers, indigenous peoples and their organizations and to women whohave suffered various forms of discrimination despite their contributions to variousaspects of our national and social life.11

As a resource allocation concern, the Constitution provides that naturalresources are owned by the State, except agricultural lands or those that have becomeprivate by operation of law. It also enumerated modes of utilization of naturalresources, i.e. direct utilization by the State, production-sharing, joint venture andco-production and small scale utilization. The country’s natural resources are forthe exclusive enjoyment of Filipinos. However, the President may enter intoagreements with foreign-owned corporations for large-scale exploration andexploitation of minerals, petroleum and other mineral oils.12

The U.N. Framework Convention on Climate Change has been the center-piece of global efforts to combat global warming and the international community’smost essential tools in the struggle to promote sustainable development. This treatywas finalized in June 1992 as one of the instruments at the U.N. Conference onEnvironment and Development (UNCED) held at Rio de Janeiro. It was signed by154 States and the European Community and entered into force on 21 March 1994.It reflected a compromise between those states which were seeking specific targetsand timetables for emissions reductions, and those which wanted a skeletonConvention to serve as basis for future protocols. It established the principle ofcommon but differentiated responsibility in international environmental law whichrequires international response measures aimed at addressing environmentalproblems but imposing different commitments from States and their respectivecapabilities. It also established (a) commitments to stabilize greenhouse concentrationsin the atmosphere at a safe level over the long term; (b) a financial mechanism and acommitment by certain developed countries to provide financial resources for meeting

10 PHILIPPINE JUDICIAL ACADEMY, ENVIRONMENTAL LAW TRAINING MANUAL, 27-8 (2006).

11 Ibid., p. 29-30, citing CONST., Art. XII, sec. 2, par. 3; Art. XIII, sec. 7; Art. II, sec. 21; Art. XIII, sec 4; Art. II, sec.22; Art. XII, secs. 5 & 6; Art. II, sec. 14; Art. XIII, secs. 14-16; Art. II, sec. 23.

12 Ibid., p. 31-2, citing CONST., art. XII, sec. 2; arts. XII, secs. 3-4 & 7.

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certain incremental costs and adaptation measures; (c) two subsidiary bodies to theConference of the Parties; (d) a number of important guiding principles; and (e)potentially innovative implementation and dispute settlement mechanisms.

The Philippines has signed many global conventions which addressed theenvironment such as the protection of the ozone layer,13 trade in hazardous wastes,14

biological diversity,15 climate change,16 among others. Section 2, Article II of thePhilippine Constitution provides that the Philippines adopts the generally acceptedprinciples of international law as part of the law of the land. By the principle ofincorporation, it is but proper that the Philippines implement the provisions of theenvironment treaties it has ratified. Therefore, an enumeration of the recentimplementing statutes is in order.

3. Recent Implementing Environmental Statutes

To address the global climate change and other international conventions whichthe Philippines has ratified and pursuant to the constitutional provisions, the followingstatutes were enacted.

3.1 Republic Act No. 8749 (1999)

The Philippine Clean Air Act of 1999 is a comprehensive air qualitymanagement policy and program which encourages cooperation and self-regulationamong citizens and industries through the application of market-based instruments,focuses primarily on pollution prevention, promotes public information andencourages informed and active public participation in air quality planning andmonitoring, and formulates as well as enforces a system of accountability for shortor long-term impact of a project, program or activity.17

The rights of citizens are recognized as follows:18

a. to breathe clean air;b. to use and enjoy all natural resources according to the principle of

sustainable development;c. to participate in the formulation, planning, implementation and

monitoring of environmental policies and programs and in the decision-making process;

13 See note 5.

14 Convention on the Control of Transboundary Movements of Hazardous Wastes, Basel, March 22, 1989.Philippines ratified it on October 21, 1993.

15 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992. Philippines ratified it on October 8, 1993.

16 U.N. Framework Convention on Climate Change, New York, May 9, 1992. Philippines ratified it on August 2,1994.

17 Rep. Act No. 8749 (1999), sec. 3, 95 O.G. 6831 (Sept. 27, 1999).

18 Id., sec. 4.




d. to participate in any decision-making concerning policies, projects oractivities that may have an adverse impact on the environment orpublic health;

e. to be informed of the nature and extent of the potential hazard ofany activity and to be served timely of any significant rise and anylevel of pollution and the accidental or deliberate release into theatmosphere of harmful or hazardous substances;

f. access to public records;g. bring action in court or quasi-judicial bodies to enjoin all activities in

violation of environmental laws and regulations, to compelrehabilitation and clean up of affected area and to seek the impositionof penal sanctions against violations; and

h. to bring action in court for the compensation of personal damagesresulting from adverse environmental and public health impact of aproject or activity.

The law lays down pollution standards for different sources: stationary, motorvehicles, smoking and other mobile sources.19

Note that in Section 5 of Republic Act No. 9211, otherwise known as the TobaccoRegulation Act of 2003, smoking is banned in public places such as playschools,educational institutions, youth hostels, recreational facilities; elevators and stairwells;buildings and premises of public and private hospitals, clinics, nursing homes andlaboratories; locations where fire hazards are present, i.e., gas station storage areasfor flammable or combustible materials; public conveyances and public facilities,i.e., airport and ship terminals, train and bus stations, restaurants and conferencehalls except for separate smoking areas; and food preparation areas.

Republic Act No. 8749 also regulates the use of fuels, additives, substances,and pollutants, the most significant is the phasing out of leaded gasoline.20 It alsomandates the phasing out of ozone-depleting substances, reduction of greenhousegas emissions, the reduction and elimination of persistent organic pollutants (POPs)such as dioxins furans,21 and the regulation of the use of radioactive emissions.22

Any affected person may file an administrative action with the DENR which,upon verified complaint or motu proprio institute administrative proceedings againstany person violating standards or limitations provided by this law or any order, ruleor regulation issued by the Department.23 The law also establishes the filing ofcitizen suits against (a) any person who violates or fails to comply with the provisionsof this Act or its implementing rules and regulations; (b) the Department or other

19 Id., secs. 6-25.

20 Rep. Act No. 8749 (1999), secs. 26-29.

21 Id., secs. 30-32.

22 Id., sec. 33.

23 Id., sec. 40.

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implementing agencies with respect to orders, rules and regulations issuedinconsistent with this Act; and/or (c) any public officer who willfully or grosslyneglects the performance of a duty enjoined by this Act or its implementing rules orregulations, or abuses his authority in the performance of his duty or improperlyperforms his duties under this Act or its implementing rules and regulations.However, no suit can be filed until after 30-day notice has been given to the publicofficer in the alleged violation concerned and no appropriate action has been takenthereon. Within 30 days, the court makes a determination if the complaint is maliciousor baseless and shall accordingly discuss the action and award attorney’s fees anddamages.24

The court shall exempt such action from the payment of filing fees, exceptfees for actions not capable of pecuniary estimation and shall likewise, upon primafacie showing of the non-enforcement or violation complained of, exempt the plaintifffrom the filing of an injunction bond for the issuance of a preliminary injunction.25

A person has also the right to file any criminal or civil action, independent of theadministrative action.26

Since petitioners, complainants or public officers are always in danger of havinga countersuit in order to prevent the implementation of this law, a Strategic LegalAction Against Public Participation (SLAPP) can be filed and the investigating prosecutoror the court makes a determination within 30 days whether such countersuit hasbeen filed to harass, vex, exert undue pressure, or stifle such legal resources of theperson complaining of or enforcing the provisions of this Act. Upon determinationand evidence, the court shall dismiss the case and award attorney’s fees and doubledamages.27

Finally, the law imposes various kinds and penalties for the three categories ofviolations, namely: (1) violation of standards for stationary sources; (2) violations ofstandards for motor vehicles; and (3) violations of other provisions of the Act whichrange from a maximum of P100,000 pesos or 10 years imprisonment to a minimumof P1,000 or 6 months and 1 day of imprisonment.

In the case of Metropolitan Manila Development Authority (MMDA) v. Jancom,28 theconstitutionality of Section 20 wherein the ban on incineration was questioned beforethe Supreme Court. It was ruled that the said section does not absolutely prohibitincineration as a mode of waste disposal, rather only those burning processes whichemit poisonous and toxic fumes are banned.

24 Id., sec. 41.

25 Id., sec. 40, last par.

26 Id., sec. 42.

27 Id., sec. 43.

28 G.R. No. 147465, January 30, 2002, 375 SCRA 320 (2002).




In Henares, Jr., et al. v. Land Transportation Franchising and Regulatory Board (LTFRB),et al.,29 petitioner challenged the Supreme Court to issue a writ of mandamuscommanding the LTFRB and the Department of Transportation and Communication(DOTC) to require public utility vehicles (PUVs) to use compressed natural gas(CNG) as alternative fuel. Citing statistics, petitioners attempted to present acompelling case for judicial action against the bane of air pollution and relatedenvironmental hazards. Petitioners alleged that the particulate matters (PM) – complexmixtures of dust, dirt, smoke and liquid droplets caused detrimental effects on health,productivity, infrastructure and the overall quality of life. They averred that withhydrocarbons, oxide of nitrogen (NOx) it creates smog; with sulfur dioxide, it createsacid rain; and with ammonia, moisture and other compounds, it reacts to form nitricacid and harmful nitrates. Fuel emissions cause retardation and leaf bleaching inplants. Another emission, carbon monoxide (CO), when not completely burned butemitted in the atmosphere and then inhaled can disrupt the flow of oxygen in theblood. With prolonged exposure CO affects the nervous system and can be lethal topeople with weak hearts. To counter the detrimental effects of CO, petitionerproposed the use of CNG as an alternative which is mostly methane containingsmall amount of propane and butane. It is colorless, odorless and considered thecleanest fossil fuel because it produces less pollutants than coal and petroleum.

The Solicitor General commented that Section 3, Rule 45 of the Rules ofCourt which explains the writ of mandamus is not a proper remedy because itcommands a tribunal, corporation or person to do an act that is required when he orit unlawfully neglects the performance of an act which the law specifically enjoins asa duty. The Solicitor General notes that nothing in RA 8749 prohibits the use ofgasoline and diesel by owners of motor vehicles and the law does not mention CNGas an alternative fuel for PUVs. Moreover, it is the DENR which is tasked toimplement RA 8749 and the Department of Energy (DOE) in Section 26 to set thespecifications for all types of fuel and fuel-related products to improve fuel compositionfor improved efficiency and reduced emissions. Under Section 21, the DOTC islimited to implementing the emission standards for motor vehicles.

The issues were two-fold: Do the petitioners have legal personality to bringtheir petition and should mandamus issue against respondents to compel PUVs touse compressed natural gas as an alternative fuel?

The Supreme Court agreed that there is no dispute that petitioners havestanding to bring the case before it. However, mandamus is unavailable to pinpointthe law that imposes an indubitable duty on respondents that will justify a grant ofthe writ of mandamus compelling the use of CNG for PUVs. It appears that thelegislature should provide first the specific statutory remedy to the complexenvironmental problems based before any judicial recourse by mandamus is taken.The Petition was dismissed for lack of merit.

29 G.R. No. 158290, October 23, 2006, 505 SCRA 104 (2006).

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The Ecological Solid Waste Management Act declares the policy of the Stateto adopt a systematic, comprehensive and ecological solid waste managementprogram.30 It defines solid waste as referring to all discarded household waste,commercial waste, non-hazardous, institutional and industrial waste, street sweepings,construction debris, agricultural waste and other non-hazardous, non-toxic solidwaste.31

In the implementation and enforcement of this Act, the local government units(LGUs) shall be primarily responsible. Segregation and collection of solid wasteshall be conducted at the barangay level specifically biodegradable, compostable andreusable waste but the collection of non-recyclable materials and special wastes shallbe the responsibility of the municipality or city.32 Multi-purpose cooperatives orassociations in every LGU can undertake projects under the provisions of the Act.33

The barangay shall be responsible for ensuing 100 per cent collection efficiencyfrom residential, industrial and agricultural wastes.34 A ten-year Government SolidWaste Management Plan shall be prepared for the re-use, recycling and compostingof wastes generated in their respective jurisdictions.35 The plan shall identify thespecific strategies and activities taking into account the following such as – availabilityand provision of properly designed containers or receptacles in selected collectedpoints for temporary storage of solid waste; segregation of different types of wastesfor re-use, recycling and composting, handling and transfer to processing or finaldisposal sites; and enforcement of ordinance to effectively implement the barangaycollection system.36 There shall be established a Materials Recovery Facility (MRF)in every barangay or cluster of barangays.

The LGU recycling component shall describe methods for developing themarkets for recycled materials and the feasibility of procurement reference for thepurchase of such products as well as the determination of price preference toencourage its purchase.37

No person owning, operating or conducting a commercial establishment in thecountry shall sell or retail any product that is not placed, wrapped or packaged inenvironmentally acceptable packaging. The National Solid Waste Commission shalldetermine a phase-out period after proper consultation with stake holders. Its

30 Rep. Act No. 9003 (2001), sec. 2.

31 Id., sec. 3(kk).

32 Id., sec. 10.

33 Id., sec. 13.

34 Id., sec. 17(a).

35 Id., sec. 16.

36 Rep. Act No. 9003 (2001), sec. 17(c).

37 Id., sec. 17(f)(3).




violation constitutes grounds for revocation, suspension, denial or non-renewal ofthe license of the establishment.38

Republic Act No. 9003 was cited in the case of Province of Rizal, et al. v. ExecutiveSecretary, Secretary of Environment and Natural Resources, et al.39 The case arose at theheight of the garbage crisis in Metro Manila and its environs when the Office of thePresident set aside some parts of the Marikina Watershed Reservation extendingmore or less 18 hectares since 1990 for use as sanitary landfill and similar wastedisposal for the solid wastes of Quezon City, Marikina City, San Juan City,Mandaluyong City, Pateros, Pasig City and Taguig by virtue of ProclamationNo. 635 dated August 28, 1995.

As early as February 1989, the Sangguniang Bayan of San Mateo passed aresolution banning the creation of dumpsites for Metro Manila garbage and to suspendand hold in abeyance all or any part of the operation with respect to the San MateoLandfill Dumpsite. No action by the concerned agencies was taken. Subsequently,the Community Environment and Natural Resource Office of DENR-4 submitted aMemorandum that the on-going dumpsite is in violation of Presidential DecreeNo. 705 or the Revised Forestry Code because it is located in the upper portion ofthe Marikina Watershed Reservation and must be totally stopped in order to saveour healthy ecosystems therein, avoid much destruction, and loss of millions ofpublic funds over the area. Nevertheless, the Department of Environment andNatural Resources (DENR) granted the Metro Manila Authority an EnvironmentalCompliance Certificate but the Laguna Lake Development Authority (LLDA)opposed it because the dumpsites are within the watershed and due to heavy pollution,it increased the risk of diseases. Besides, such activities would negate government’sefforts to upgrade the water quality of Laguna Lake. Despite strong objections, thewaste disposal operations continued. On July 22, 1996, petitioners filed before theCourt of Appeals a civil action for certiorari, prohibition and mandamus withapplication for a temporary restraining order/writ of preliminary injunction. OnJune 13, 1997, the Court of Appeals denied the application for lack of cause ofaction. Hence, this review on certiorari of the decision.

The Supreme Court directed the permanent closure of the San Mateo landfilland reversed the Court of Appeals’ decision. It noted two facts: the San Mateo sitehas adversely affected its environs and that the sources of water should always beprotected. The Court declared that the circumstances under which ProclamationNo. 635 was passed violated Republic Act No. 7160 (Local Government Code). TheCourt said:

“Under the Local Government Code, two requisites must be metbefore a national project that affects the environmental and ecologicalbalance of local communities can be implemented: prior consultation with

38 Id., sec. 30.

39 G.R. No. 129546, December 13, 2005, 477 SCRA 436 (2005).

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the affected local communities, and prior approval by the appropriatesanggunian. Absent either of these mandatory requirements, the project’simplementation is illegal.

The Court added that these concerns are addressed by Republic Act No. 9003approved on January 26, 2001 which mandates the formulation of a National SolidWaste Management Framework which should include, among other things, themethod and procedure for the phase-out and the eventual closure within 18 monthsfrom effectivity of the Act in case of existing open dumps and/or sanitary landfillslocated within an aquifer, groundwater reservoir or watershed area. Any landfillsubsequently developed must comply with the minimum requirements laid down inSection 40, specifically that the site selected must be consistent with the overall landuse plan of the local government unit and that the site must be located in an areawhere the landfill’s operation will not detrimentally affect sensitive resources suchas aquifers, groundwater reservoirs or watershed areas. The petition was granted.

Former President Gloria Macapagal-Arroyo set a June, 2009 deadline for LGUsto comply with RA 9003 which affirmed a December 2008 directive instructing allgovernment agencies and LGUs to reduce waste volume by 50% within 6 months andthus cut emissions from dumps. Prior to this, the Environment Secretary issued inMay 2008, a 6-month ultimatum for non-compliant LGUs to shut down over 1,000polluting dumps long outlawed by RA 9003. To date, only 2,701 barangays out of42,000 barangays nationwide have Materials Recovery Facilities (MRFs). In MetroManila, only 435 barangays have MRFs. The metropolis has 1,695 barangays withwaste diversion rate of only 28%.

3.3 Republic Act No. 9275 (2004)40

The Philippine Clean Water Act of 2004 provides for a comprehensive waterquality management consistent with the protection, preservation and revival of thequality of our fresh, brackish and marine waters.41 It shall primarily apply to theprevention, abatement and control of pollution from water sources. To pursuesustainable development, it mandates the formulation of an integrated water qualitymanagement framework which depends heavily on LGUs because the DENR incoordination with the National Water Resources Board (NWRB) designates certainareas as water quality management areas using appropriate physiographic units suchas watershed, river basins or water resources regions as criteria42 and similarhydrological, hydro-geological, meteorological or geographic conditions. Saidmanagement area is governed by a board composed of mayors and governors ofmember local government units and representatives of relevant national governmentagencies, duly registered NGOs, water utility sector and the business sector. Thegoverning board shall formulate strategies to coordinate policies necessary for

40 100 O.G. 5041 (Aug. 2, 2004).

41 Rep. Act No. 9275 (2004), sec. 2.

42 Id., sec. 5.




effective implementation in accordance with those established standards in theframework and to monitor compliance with the Action Plan as well as the preparationof a national program on sewerage and septage management.43 Each LGU shallhave the following powers and functions:

a) monitoring of water quality;b) emergency response;c) compliance with the framework of the Water Quality Management

Action Plan;d) to take active participation in all efforts concerning water quality

protection and rehabilitation; ande) to coordinate with other government agencies and civil society and

the concerned sectors in the implementation of measures to preventand control water pollution.44

The DENR shall gradually devolve to the LGUs, and to governing boards, theauthority to administer some aspects of water quality management and regulation,including but not limited to, permit issuances, monitoring and imposition ofadministrative penalties, when, upon the DENR’s determination, the LGU or theGoverning Board has demonstrated readiness and technical capability to undertakesuch functions.45 A multi-sectoral group shall be established in each managementarea to effect water quality surveillance and monitoring network including samplingschedules and other similar activities.46

The DENR shall require program and project proponents to put up anEnvironmental Guarantee Fund (EGF) as part of the environmental managementplan attached to an Environmental Compliance Certificate (ECC). The EGF shallfinance the maintenance of the health of the ecosystems and especially theconservation of watersheds and aquifers affected by the development, and the needsof emergency response, clean-up or rehabilitation of areas that may be damagedduring, after and until the lapse of the period indicated in the ECC. The EGF maybe in the form of a trust fund, environmental insurance, surety bonds, letters ofcredit, self-insurance and other instruments or combinations thereof.47

The “polluter pays principle” is applied under this law because any personwho causes pollution in or pollutes water bodies in excess of the applicable andprevailing standards, shall be responsible to contain, remove and clean-up anypollution incident at his own expense to the extent the same water bodies have beenrendered unfit for utilization and beneficial use. If he fails to do so immediately, theDENR and other concerned government agencies shall immediately conduct

43 Id.,

44 Id., sec. 20.


46 Id., sec. 5.

47 Id., art. 15.

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containment, removal and clean-up operations but the expenses incurred must bereimbursed by the persons found to have caused the pollution.48

1.1.1 Republic Act No. 9483 (2007)49

In view of the extensive damage caused by the sinking of the tanker Solar 1during rough weather, spilling its load of 2.1 million barrels of crude oil into the seaand along the Guimaras-Iloilo coastline, the Oil Pollution Compensation Act of 2007was enacted. This law implements the provisions of the 1992 InternationalConvention on Civil Liability for Oil Pollution Damage and the 1992 InternationalConvention on the Establishment of an International Fund for Compensation forOil Pollution damages, and provides penalties for violations thereof. It imposesstrict liability for oil pollution damage on the owner of the ship at the time of theincident; or where the incident consists of a series of occurrences, at the time of thefirst occurrence.50

Following the occurrence of a particular incident, the owner shall be requiredto constitute a fund for the total sum representing the limit of his liability with theMaritime Industry Authority (MARINA) to cover incidents causing liability.51 Allowners shall be required annually by MARINA to maintain insurance or otherfinancial security for pollution damage in sums fixed by applying the limits of liabilityunder this Act.52

An action for compensation on account of pollution damage which occurred inthe territory may be brought before the Regional Trial Court against the owner ofthe polluting ship or insurer or other person providing financial security of the saidowner’s liability for pollution. A foreign corporation, partnership, association orindividual whether or not licensed to transact business in the Philippines, providingsuch insurance or financial liability shall be considered doing business in thePhilippines and shall be subject to the jurisdiction of the regular judicial courts ofthe country.53

The Philippine Coast Guard shall investigate, motu proprio or through writtenundertaking of a complainant, any incident claim for compensation or violation ofthis Act, and shall file an appropriate action with the RTC. It shall likewise providethe complainant necessary technical evidence or any assistance, whether or nottestimonial or documentary insofar as the claim for compensation or violation isconcerned.54

48 Id., sec. 16.

49 103 O.G. 6638 (Oct. 15, 2007).

50 Rep. Act No. 9483 (2007), sec. 6.

51 Id., sec. 11.

52 Id., sec. 12.

53 Id., sec. 17.

54 Id., sec. 17.




The filing of this action shall only require payment of filing fees equivalent toten per centum (10%) of the regular Supreme Court rates. However, the indigent plaintiffsshall be exempt from payment of docket and other lawful fees, and of transcripts ofstenographic notes. These fees shall be a lien on any judgment rendered in the casefavorable to the indigent, unless the Court otherwise provides.55

When compensation is not obtained or satisfied under the 1992 Civil LiabilityConvention, the claimant may seek compensation under the 1992 Fund Convention.The RTC shall furnish the IOPC Fund with its certified decision, together withpertinent documents on a claim for pollution damages. If it is insufficient to satisfythe claims of those who are entitled to compensation, the amount of compensationof each client shall be distributed pro rata.56 The IOPC Fund may intervene as aparty to any legal proceeding instituted against the owner of a ship or his guarantorunder Art. IX of the 1992 Civil Liability Convention.57

A novel principle was adopted by the Supreme Court in the case of MetropolitanManila Development Authority, et al. v. Concerned Residents of Manila Bay in terms ofenforcing environmental laws.58 Respondents filed a complaint on December 29,1999 before the RTC against several government agencies59 for the clean-up,rehabilitation and protection of Manila Bay. The complaint alleged that the waterquality of Manila Bay had fallen below the allowable standards set by the PhilippineEnvironment Code. This environmental aberration stemmed from the reckless,wholesale, accumulated and ongoing acts or commission resulting in the clear andpresent danger to public health and in the depletion and contamination of marinelife in Manila Bay, for which all the aforementioned government agencies must beheld jointly and/or solidarily liable. Thus, they were collectively ordered to clean-upManila Bay and to restore its water quality to Class B waters fit for swimming, skindiving and other forms of contact recreation. Respondents alleged that the continuedneglect of petitioners in abating the pollution of Manila Bay constituted a violationof about nine environmental laws.

Respondents, as plaintiffs, prayed that the petitioners be ordered to clean theManila Bay and to submit a concerted plan of action for the purpose. The RegionalTrial Court (RTC) rendered a decision in favor of respondents ordering thegovernment agencies jointly and solidarily to clean up and rehabilitate Manila Bayand with the DENR as lead agency to submit a coordinated and concerted scheme ofaction for the rehabilitation and restoration of the Bay within 6 months.


56 Id., sec. 18.

57 Id., sec. 19.

58 G.R. Nos. 171947-48, December 18, 2008.

59 Metropolitan Manila Development Authority (MMDA), Department of Environment and Natural Resources(DENR), Department of Education, Culture and Sports (DECS), Department of Health (DOH), Department ofAgriculture (DA), Department of Public Works and Highways (DPWH), Department of Budget and Management(DBM), Philippine National Police (PNP), Maritime Group and Department of the Interior and Local Government(DILG).

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Petitioners appealed to the Court of Appeals (CA) while the DENR and theother agencies filed their petition with the Supreme Court. The petitions were sentto the Court of Appeals for consolidation. In the main, petitioners argued thatPresidential Decree No. 1152 related only to specific pollution incidents and doesnot cover cleaning in general. It raised concerns about the lack of funds for thepurpose. The CA denied the appeal and affirmed the RTC decision in toto. Hence,the petition was filed based on the following issues:

1) Whether or not Sections 17 & 20 of PD 1152 envisage a clean-up ingeneral or limited to specific pollution incidents.

2) Can petitioners be compelled by mandamus to clean-up and rehabilitateManila Bay?

The Supreme Court agreed with the respondents by stating that petitioner’sobligation to perform their duties as defined by law, on one hand, and how they areto carry out such duties on the other, are two different concepts. While theimplementation of the MMDA’s mandated task may entail a decision-making process,the enforcement of the law or the very act of doing what the law exacts to be done isministerial in nature may be compelled by mandamus.

The MMDA’s duty in the area of solid waste disposal is set forth in theEnvironment Code, RA 9003 and in its charter. Any suggestion that the MMDAhas the option to perform its solid waste disposal-related duties ought to be dismissedfor want of legal bases. A perusal of the other petitioners’ respective charters orsimilar enabling statutes and pertinent laws would yield this conclusion. Thesegovernment agencies are enjoined, as a matter of statutory obligation, to performcertain functions directly or indirectly relating to the clean-up, rehabilitation,protection and preservation of Manila Bay. They are precluded from choosing notto perform these duties for the enabling laws and issuances are in themselves clear,categorical and complete as to what are the obligations and mandate of each agencyunder the law.

As to the issue whether Sections 17 & 20 of the Environment Code includedcleaning in general, the Court said: “When the Clean Water Act (RA 9275) tookeffect, its subject, Section 16 on Clean Up Operations amended the counterpart provision,(Sec. 20) of the Environment Code (PD 1152), Sec. 17 of PD 1152 continues, however,to be operational. Section 20 merely designates the DENR as the lead agency in theclean-up operations. As to the arguments that the definitions of “clean-up operations”and “accidental” spills in Section 62(g) & (h), Section 20 is limited only to “waterpollution incidents” which are situations that presupposes the occurrence of specificpollution events requiring containment, removal and cleaning operations. However,Section 17 is not hobbled by such limiting definition because the phrases “clean-up,”“operations,” and “accidental spills” do not appear in said Section 17, not even in theChapter where it is located. Section 17 requires them to act even in the absence ofa specific pollution incident, as long as water quality was deteriorated to a degreewhere its state will adversely affect its usage. This section commands concerned




government agencies, when appropriate, “to take such measures as may be necessaryto meet the prescribed water quality standard.” Section 17 of the EnvironmentCode comes into play and the specific duties of the agencies to clean up are mandatedeven if there are no pollution incidents staring at them. Moreover, they seem tooverlook the fact that the pollution of Manila Bay is of such magnitude that it isimpossible to draw the line between a specific and a general pollution incident. Also,Section 16 of RA 9275, previously Section 20 of PD 1152, covers a general clean-upsituation. The clean-up and/or restoration of Manila Bay is only an aspect and theinitial stage of the long-term solution. After the rehabilitation process, it is imperativethat wastes and contaminants found in the rivers, inland bays and other bodies ofwater be stopped from reaching Manila Bay.

The Petition was denied and the CA and RTC decisions were affirmed butwith modifications in view of subsequent developments or supervening events inthis case. The DENR, as the primary government agency responsible for itsenforcement and implementation, was directed to fully implement its OperationalPlan for the Manila Bay Coastal Strategy for its rehabilitation, restoration, andconservation of Manila Bay at the earliest possible time. It was ordered to callregular coordination meetings with concerned government agencies to ensuresuccessful implementation of the aforesaid plan of action in accordance with indicatedcompletion schedules. The heads of petitioner agencies, in line with the principle of“continuing mandamus” shall, from the finality of this decision, submit to the Courta quarterly progressive report of the activities undertaken in accordance with thisDecision.

Atty. Antonio A. Oposa, Jr. filed a motion to cite in contempt the governmentofficials concerned for failure to report to the Supreme Court.60 Except for theDENR and MMDA, which have submitted their reports, the Supreme Court orderedthem to comment in ten days why they should not be cited in contempt. To date,there is a Technical Committee assisting the Supreme Court in assessing the reporton the clean-up of Manila Bay.

In Bangus Fry Fisherfolk, et al. v. Lanzanas, et al.,61 an ECC was issued in favor ofrespondent National Power Corporation authorizing the construction of a temporarymooring facility in Minolo Cove, Sitio Minolo, San Isidro, Puerto Galera, OrientalMindoro, which has been declared as a mangrove area and breeding ground forbangus fry, an eco-tourist zone. Petitioners filed a complaint with the Regional TrialCourt of Manila, for the cancellation of the ECC and for the issuance of a writ ofinjunction. The trial court dismissed the complaint for non-exhaustion ofadministrative remedies and for lack of jurisdiction to issue the injunctive relief.Hence, the filing of the petition in the High Court.

60 Alcuin Papa, “6 GMA Men to Face Contempt Raps: Eco-lawyer Presses Manila Bay Clean-up,” PhilippineDaily Inquirer, August 24, 2009, p. A-1; A-10.

61 G.R. No. 131442, July 10, 2003, 405 SCRA 630 (2003).

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In denying the petition, the Supreme Court ruled that the petitioner’s causeof action is the alleged illegality of the issuance of the ECC and such complaint isnot capable of pecuniary estimation. It falls within the exclusive and originaljurisdiction of the RTCs under Section 19(1) of Batas Pambansa Blg. 129, as amendedby RA 7691. Anent the jurisdiction to issue injunctive writs, only the SupremeCourt can do so under PD 1818 and later under RA 8975 which superseded it.

The Court likewise ruled that petitioners bypassed the Secretary of the DENRwhen they immediately filed their complaint with the Manila RTC, depriving theDENR Secretary the opportunity to review the decision of his subordinate. Underthe Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners’omission rendered their complaint dismissible for lack of cause of action. The RTCdecision was affirmed.


The Biofuels Act of 2006 aims to reduce the country’s dependence on importedfuels with due regard to the protection of public health, the environment and naturalresources. It mandates to develop and utilize indigenous renewable and sustainably-sourced clean energy sources as well as to mitigate toxic and greenhouse (GHG)emissions.62 Thus, all liquid fuels for motors and engines sold in the Philippinesshall contain locally-sourced biofuels components by setting time limits on the blendingof bioethanol with gasoline fuel.63 To encourage investments in the production,distribution and use of locally-produced biofuels, additional incentives are givensuch as specific and value-added taxes, exemption from waste water charges, andfinancial assistance from government institutions. To implement and monitor thesupply and utilization of biofuels and biofuel blends as well as to recommendappropriate measures in cases of shortage of feedstock supply, a National BiofuelBoard (NBB) is established, with the Secretary of the Department of Energy asChairperson.64


To encourage the development and utilization of renewable energy resourcesand to accelerate the exploration and development of renewable energy resourcesas well as to increase the utilization of renewable energy by institutionalizing thedevelopment of national and local capabilities in the use of renewable energy systems,the “Renewable Energy Act of 2008” was enacted.65 Since all stakeholders in theelectric power industry contribute to the growth of the renewable industry, theNational Renewable Energy Board (NREB) is created.66 It shall set the minimum

62 Rep. Act No. 9367 (2007), sec. 2.

63 Id., sec. 5.

64 Id., secs. 7-10.

65 Rep. Act No. 9513 (2008), sec. 2.

66 Id., sec. 6.




percentage of generation from eligible renewable energy resources and determineto which sector a Renewable Portfolio Standard (RPS) shall be imposed on a per gridbasis. To accelerate development, a feed-in tariff system for electricity producedfrom wind, solar, ocean, run-of-river hydropower and biomass is hereby mandated.67

The Department of Energy (DOE) shall also establish the Renewable EnergyMarket (REM) and shall direct the Philippine Electricity Market Corporation (PEMC)to implement changes to the “Wholesale Electricity Spot Market” (WESM) in orderto incorporate rules specific to the operation of the REM under the WESM. ThePEMC shall establish a Renewable Energy Registrar which shall issue, keep, verifyRE certificates corresponding to energy generated from eligible Renewable Energyfacilities to be used for compliance with the RPS.68 The DOE shall establish aGreen Energy Option program which provides end-users the option to chooseRenewable Energy resources as their sources of energy. The end-user who willenroll under this program should be informed by way of its monthly electric bill,how much of its monthly energy consumption and generation charge is provided byRenewable Energy facilities. These distribution utilities shall enter into net-meteringagreements with qualified end-users who will be installing the RE system.69

The government share on existing and new Renewable Energy developmentprojects shall be equal to 1% of the gross income of Renewable Energy resourcedevelopers resulting from the sale of renewable energy produced and such otherincome incidental to it except for indigenous geothermal energy, which shall be 1.5%of gross income.70 All Renewable Energy projects shall comply with existing DENRenvironmental regulations and/or that of any other concerned government agency.71

General incentives for renewable energy projects and activities, including hybridsystems are income tax holidays, duty-free importation of Renewable Energymachinery, equipment and materials, special realty tax rates on equipment andmachinery, net operating loss carry-over, corporate tax rate, zero percent value-addedtax rate, cash incentive of renewable energy developers for missionary electrification,tax exemption of carbon credits and tax credit on domestic capital equipment andservices.72

3.6 Republic Act No. 9512 (2008), otherwise known as the “NationalEnvironmental Awareness and Education Act of 2008”

The Department of Education (DepEd), the Commission on Higher Education(CHED), the Technical Education and Skills Development Authority (TESDA), the

67 Id., sec. 7.

68 Rep. Act No. 9513 (2008), sec. 8.

69 Id., sec. 9.

70 Id., sec. 13.

71 Id., sec. 14.

72 Id., sec. 15.

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Department of Social Welfare and Development (DSWD), in coordination with theDENR, Department of Science and Technology (DOST) and other relevant agencies,shall integrate environmental education in its school curricula at all levels, whetherpublic or private, including barangay daycare, preschool, non-formal, technicalvocational, professional level, indigenous learning and out-of-school youth coursesor programs. Environmental education shall encompass environment concepts andprinciples, environmental laws, the state of international and local environment,local environmental best practices, the threats of environmental degradation andtheir impact on human well-being, the responsibility of the citizenry to theenvironment and the value of conservation, protection, and rehabilitation of naturalresources and the environment in the context of sustainable development. It shallcover both theoretical and practicum modules comprising activities, projects,programs, including, but not limited to, tree planting, waste minimization, segregation,recycling and composting; freshwater and marine conservation; forest managementand conservation; relevant livelihood opportunities and economic benefits and suchprograms and undertakings to aid in the implementation of the differentenvironmental protection laws.73

The DepEd, CHED, TESDA, DENR, DOST and other relevant agencies inconsultation with the experts on the environment and the academe, shall lead in theimplementation of public education and awareness programs on environmentalprotection and conservation through collaborative inter-agency and multi-sectoraleffort at all levels.74 The DENR has the primary responsibility of periodicallyinforming all agencies concerned on current environmental updates, includingidentifying environmental education issues for national action and providing strategicadvice on environmental education activities. The DepEd, CHED, TESDA, DENR,DOST, DSWD and barangay units shall ensure that the information is disseminatedto the students.75

The DOST is mandated to create programs that will ensure that studentsreceive science-based quality information on environmental issues to encourage thedevelopment of environmental-friendly solutions, devices, equipment and facilities.76

The CHED and TESDA shall include environmental education and awarenessprograms and activities in the National Service Training Program under RepublicAct No. 9163 as part of the Civil Welfare Training Service component required forall baccalaureate degree courses and vocational courses with a curriculum of at leasttwo (2) years.77

73 Rep. Act No. 9512 (2008), sec. 3.

74 Id., sec. 6, 1st par.

75 Id., sec. 6, 2nd par.

76 Id., sec. 6, 3rd par.

77 Id., sec. 4.




Capacity-building programs nationwide, such as trainings, seminars, workshopson environmental education, development and production of environmentaleducation materials, teacher-education courses and related livelihood programs shallbe implemented.78 The month of November every year shall be known as“Environmental Awareness Month” throughout the Philippines.79

3.7 Republic Act No. 9729 or the “Climate Change Act of 2009”

As a party to the UN Framework Convention on Climate Change, thePhilippines adopts the ultimate objective of the Convention which is the stabilizationof greenhouse gas concentrations in the atmosphere at a level that would preventdangerous anthropogenic interference with the climate system to be achieved withina time frame sufficient to allow ecosystems to adapt naturally to climate change, toensure that food production is not threatened and to enable economic developmentto proceed in a sustainable manner.80

This statute recognizes the vulnerability of the Philippine archipelago and itslocal communities, particularly the poor, women, and children to potential dangerousconsequences of climate change such as rising seas, changing landscapes, increasingfrequency and/or severity of droughts, fires, floods and storms, climate-related illnessand diseases, damage to ecosystems, biodiversity loss that affect the country’senvironment, culture, and economy.81

This law mainstreams climate change into government policy formulations,establishes the framework strategy and program on climate change. Towards thisend, the State adopts the principle of protecting the climate system for the benefitof humankind, on the basis of climate justice or common but differentiatedresponsibilities and the Precautionary Principle to guide decision-making in climaterisk management.

For this purpose, an independent and autonomous Climate ChangeCommission is established attached to the Office of the President. It shall be thesole policy-making body of the government which is tasked to coordinate, monitorand evaluate the programs and action plans of the government relating to climatechange.82 In view thereof, the State shall cooperate with the global community inthe resolution of climate change issues including disaster risk reduction.

It is also a policy of the State to incorporate gender-sensitive, pro-children andpro-poor perspectives in all climate change and renewable energy efforts, plans andprograms.83

78 Id., sec. 7.

79 Id., sec. 5.

80 Rep. Act No. 9729 (2009), sec. 2, 2nd para.

81 Ibid.

82 Id., sec. 4.

83 Ibid.

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The Climate Change Commission is composed of the President of thePhilippines as Chairperson and three Commissioners to be appointed for a term ofsix years by the President, one of whom shall serve as the Vice-Chairperson andExecutive Officer of the Climate Change Office.84 It has an Advisory Boardcomposed of the following: Secretaries of the Department of Agriculture, Energy,Environment and Natural Resources, Foreign Affairs, Health, Interior LocalGovernment, National Defense, Public Works and Highways, Science and Technology,Social Welfare and Development, Trade and Industry, Transportation andCommunication, Director-General of NEDA, Director-General of National SecurityCouncil; Chairperson of National Commission on Women; the Presidents of theLeagues of Provinces, Cities, Municipalities, Liga ng mga Barangay, Representativeseach from the academe, business sector and non-governmental organizations and atleast one of the sectoral representative from the disaster risk reduction community.The representatives shall be appointed by the President from a list of nominees bytheir respective groups for a term of six years unless withdrawn by the sector theyrepresent.85

Among the powers and functions of the Commission are: ensure themainstreaming of climate change in synergy with disaster risk reduction into thenational, sectoral and local development plans and programs; create an enablingenvironment that shall promote broader multi-stakeholder participation and integrateclimate change mitigation and adaptation; formulate strategies on mitigating CHGand other anthropogenic causes of climate change; and formulate and update guidelinesfor determining vulnerability to climate change impacts and adaptation assessmentsand facilitate the provision of technical assistance for their implementation andmonitoring.86

A National Panel of Technical Experts of practitioners in disciplines related toclimate change, including disaster risk reduction shall be constituted by theCommission. They shall provide technical advice to the Commission in climatescience, technologies and best practices for risk assessment and enhancement ofadaptive capacity of vulnerable human settlements to potential impacts of climatechange.87

The Commission shall also formulate a Framework Strategy on ClimateChange which serves as a basis for a program of climate change planning, researchand development, extension, and monitoring of activities to protect vulnerablecommunities from the adverse effects of climate change. It shall be formulatedbased on climate change vulnerabilities, specific adaptation needs and mitigationpotential, all in accordance with international agreements. It shall be reviewed everythree years, or as may be deemed necessary.88 A National Climate Change Action

84 Id., sec. 8.

85 Id., sec. 5.

86 Id., sec. 9

87 Id., sec. 10.

88 Id., sec. 11.




Plan shall be formulated in accordance with the Framework.89 Civic organizations,NGOs, academe, people’s organizations, the private and corporate sectors and otherconcerned stockholder groups shall assist in the development and implementationof the National Climate Change Action Plan in coordination with the Commission.90

The Local Government Units (LGUs) shall be the frontline agencies in theformulation, planning and implementation of climate change plans in their respectiveareas, consistent with the Local Government Code, the Framework and the ActionPlan.91

Government agencies such as the DepEd, DILG, DENR, DFA, the PhilippineInformation Agency, as well as government financial institutions, are given theirrespective roles to ensure the effective implementation of the framework strategyand program on climate change.92

4. Towards Environmental Justice

Among the Principles on the Role of Law and Sustainable Development adoptedat the Global Judges symposium held in Johannesburg, South Africa on August 20,2002, is that “an independent judiciary and judicial process is vital for theimplementation, development and enforcement of environmental law, and thatmembers of the Judiciary, as well as those contributing to the judicial process at thenational, regional and global levels, are crucial partners for promoting compliancewith, and the implementation of international and national environmental justice.”93

On July 5-6, 2007, the Philippines participated in the Asian Justices Forum onthe Environment – Sharing Experience to Strengthen Environmental Adjudicationin Asia which was held at Mandaluyong City, with former Chief Justice Reynato S.Puno as keynote speaker. As a result, Chancellor Ameurfina A. Melencio-Herreraof the Philippine Judicial Academy made the following recommendations:

1. Designation of exclusive courts to handle environmental cases;2. Expansion of jurisdiction of forestry courts;3. Raffling of environmental law cases in the Court of Appeals;4. Capacity-building programs to be conducted by PhilJA.

Initially, all judges and clerks of court of first and second-level courts94 wereordered to conduct an inventory of all environmental cases. Likewise, the Court ofAppeals submitted a list of 74 DENR cases filed from November 2001 to June 2007.

89 Id., sec. 13.

90 Id., sec. 16.

91 Id., sec. 14.

92 Id., sec. 15.

93 Johannesburg Principles, par. 5.

94 OCA Circular No. 34-08, dated March 19, 2008.

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As a result, the Supreme Court en banc passed a resolution95 approving saidrecommendations by:

1. Designating 117 environmental courts; 45 forestry courts from the101 courts so designated under Administrative Order No. 150-593,July 26, 1995; 48 1st level courts and 24 2nd level trial courts, to handleall types of environmental cases, including violations of the FisheriesCode (RA 8550) and violations of the NIPAS Act (RA 7586), amongothers, except those cases within the jurisdiction of quasi-judicialbodies;

2. Considering all single sala 1st and 2nd level courts as special courts tohear and decide environmental cases, in addition to their regular duties;

3. Raffling all appealed environmental cases in the Court of Appealscourt-wide; and

4. Conducting capacity-building programs for the personnel of theaforesaid environmental courts and the appellate courts after theformal designation of said courts.

Pursuant to this, the PhilJA proceeded with the training of judges using theAcademy’s publications, namely, Greening the Judiciary; Learning Modules on theEnvironment (2005) and Environmental Law Training Manual (2006) which was publishedwith the assistance of leading environmentalists.

Ensuring that the third-generation human rights are upheld, the Supreme Courtheld a Forum on Environmental Justice: Upholding the Right to a Healthful andBalanced Ecology on April 16-17, 2009, simultaneously in Baguio, Iloilo and DavaoCities. Participants in the Forum included judges, non-government organizationmembers, government representatives, the academe and other stakeholders. It hasled to the signing of Multi-sectoral Memorandum of Agreement to further strengthenand implements of the country’s environmental laws. It also resulted in valuableinputs on the Draft Rule of Procedure for Environmental Cases, which reflectsconcerns and recommendations of all stakeholders and covers all stages of litigation.96

On April 13, 2010, the Supreme Court en banc approved the Rules of Procedurefor Environmental Cases,97 effective April 29, 2010. The Rules govern the procedurein civil, criminal and special civil actions before the Regional Trial Courts,Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courtsand Municipal Circuit Trial Courts involving enforcement or violations ofenvironmental and other related laws, rules, and regulations.98

95 A.M. No. 07-11-12-SC, dated November 20, 2007 as implemented by SC Adm. Order No. 23-08 dated January28, 2008, Designation of Special Courts to Hear, Try and Decide Environmental Cases.

96 “High Court Convenes Forum on Environmental Justice,” 10 Bench Mark 1 (March 2009).

97 A.M. No. 09-6-8-SC, dated April 13, 2010.

98 Id., sec. 2.




The salient features of the Rules are:99

a. It liberalized locus standi and citizen’s suits;b. Speedy disposition of cases:

� Civil Cases. Procedural innovations are introduced at filing whereinall evidence supporting the cause of action should be submitted; certainpleadings have been prohibited under Summary Procedure; extensiveuse of pre-trial; use of affidavits in lieu of direct-examination andduration of trial abbreviated to one year, subject to extension forjustifiable cause;

� Criminal Cases. Extensive use of pre-trial to clarify and simplify theissues, use of affidavits in direct-examination, abbreviated period oftrial to one year; and authorizing the judge to enter a plea of not guiltyin instances where the accused fails to appear at arraignment being arequisite for the availment of bail;

� Special Civil Actions. Two special writs are provided: the writs ofkalikasan and continuing mandamus. In addition, the writ of kalikasanincorporates the prohibition of certain pleadings and given the samelevel of priority as the writs of habeas corpus, amparo, and habeas data.Summary proceedings have been adopted for the writ of continuingmandamus to facilitate speedy resolution.

c. Consent Decree in order to avail the benefits of negotiating a settlementincluding the preservation of litigation resources and prevention of anyfurther delay in the implementation of regulatory programs;

d. Remedial measures:� Environmental Protection Order (EPO) refers to an order issued by

the Court directing or enjoining any person or government agency toperform or desist from performing an act in order to protect, preserve,or rehabilitate the environment. It can be issued as a TemporaryEnvironmental Protection Order (TEPO) as an ancillary remedy orpermanent one (EPO). These two remedies are also available incriminal cases under the Rules;

� Writ of Continuing Mandamus;� Writ of Kalikasan seeks to address the potentially exponential nature

of large-scale ecological threats and the questions of jurisdiction arisingfrom it by petitioning the Supreme Court or Court of Appeals;

e. Application of the precautionary principle where full scientific certaintyshall not be required of the party alleging environmental damage. Theprinciple, however, does not apply in determining criminal liability.

99 Id., Rationale to the Rules of Procedure for Environmental Cases, p. 66-97.

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5. Conclusion

While the Philippines acts fast when it comes to signing internationalconventions and enacting laws to protect the environment, sadly, these measuresare seldom enforced. For example, officials need to pay more attention to country’smore than 800 rivers and river systems which are either vanishing or dying fromphysical, biological or chemical damage. Then there are the open dumps and thecontrolled dumps that should have ceased to exist in 2004 and 2006, respectively, asprovided by RA 9003, but are still around and continue to pose real toxic threat topublic health, the environment and climate.

According to former DENR Secretary Lito Atienza,

“A country’s progress would always be linked to its efforts inprotecting and preserving the environment. We cannot talk of progressif we cannot clean up the environment. These laws are nothing but scrapsof paper if we do not enforce them.”100

Most current environmental problems are essentially the result of people’sactivities and their attitude towards the socio-cultural and natural environments.Historically, individual and societal values have not always been in the best interestof preserving a high-quality environment. The present-day environmental crisisdemands a change in attitude and values in order that initiatives can be taken torescue the environment from total destruction.

� �

100 “RA 9003 Just a Scrap of Paper,” Philippine Daily Inquirer, March 24, 2009, p. A-14.


An Environmental Writ: The Philippines’ Avatar

An Environmental Writ:

The Philippines’ Avatar

Francis N. Tolentino*

I. Introduction

The Philippines was once described as follows:

“A world you didn’t think still existed… [an] island paradise… Wheretropical nights rain stars. Dazzling blue waters beckon to the pristinewhite sands bleached even whiter by the sun. And coconut trees bend tolisten to the waves. Where life is an idyll and smiles are dreamy.”1

The movie Avatar, released in 2009, is classified by critics as an epic science

fiction film.2 Yet, the scenes that it painted and the story that it exposed represent afactual milieu that is all too familiar to many nations. The movie narrated aspectacular world threatened by corporate greed and the classic battle between acorporation and the few who are willing to stand against it. In the movie, the goodguys won, but for the Philippines, this ending remains bleak and farfetched, to saythe least.

In the last 40 years, increasing urbanization, illegal logging, mining operations,

forest fires and population expansion3 have led to the loss of a third of thePhilippines’ forest cover.4 Of the 1,196 known species of amphibians, birds, mammalsand reptiles in the country, only about five percent (5%) are under some form ofprotection.5 Moreover, overfishing and destructive fishing has decreased the qualityof marine resources by 90%, amounting to an estimated cost of $420 million annuallyin lost revenues.6 “Increasing water pollution is degrading the country’s groundwater,rivers, lakes, and coastal areas, and the quality of half of the country’s rivers fallbelow water quality norms. Ninety percent (90%) of sewage is untreated and not

* AB Ateneo de Manila University; LLB Ateneo Law School, 1984; LLM University of London; SJD Candidate,Tulane University Law School (New Orleans, USA).

1 Philippine Airlines advertisement cited in Robin Broad and John Cavanagh, Plundering Paradise: The Strugglefor the Environment in the Philippines (1993).

2 Avatar (2009), available at http://movies.yahoo.com/movie/1809804784/info (last visited Mar. 21, 2010).

3 World Bank Report on the Philippine Environment, http://web.worldbank.org/WBSITE/EXTERNAL/C O U N T R I E S / E A S T A S I A P A C I F I C E X T / E X T E A P R E G T O P E N V I R O N M E N T /0,,contentMDK:20266328~menuPK:3558267~pagePK:34004173~piPK:34003707~theSitePK:502886,00.html(last visited on 6 March 2010).

4 Forest Statistics in the Philippines, http://rainforests.mongabay.com/20philippines.htm (last visited 6 March2010).

5 Id.

6 Environmental Problems in the Philippines, http://www.panda.org/who_we_are/wwf_offices/philippines/environmental_problems__in_philippines/ (last visited 6 March 2010).

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Francis N. Tolentino

disposed in an environmentally sound manner. Less than ten percent (10%) of thecountry’s total population is connected to sewers and others rarely maintain adequateon-site sanitation.”7

Despite the increasing recognition of the immediate need to address these

environmental concerns, inadequate enforcement of environmental laws still houndsthe country. Because of the rapid destruction of the country’s natural resources,aggravated by near-sighted governmental polices primarily geared toward economicgrowth and development, those that suffer the most from this ecological backlashare those afflicted with abject poverty and the environment in general. For thePhilippines, this means that the brunt of the consequences will be borne by 32.9% ofthe population, or about 27,616,888 citizens.8 Mahesh Chander Mehta is not off themark when he suggests that, in the Third World, the problems of environmentaldegradation have particularly worrisome overtones. He writes:

“In its race for modernization, the Third World has blindly adopted theWestern model for “development” – of capital and resource intensiveindustrialization, urbanization and mechanization, and chemicalizationof agriculture – in a false belief that this type of rapid growth willeventually trickle down and eradicate poverty. As a consequence, wehave paid a heavy price. Development that does not respect naturerebounds on man. Resources are exhausted, ecosystems collapse, speciesdisappear, and people’s lives, health, livelihoods, and their very survivalare threatened.”9

These predicted crises have given birth to a new world view, which mandates

government agencies and decision-makers to take into account environmental valuestogether with other governmental considerations. Particularly, these urgencies haveprompted the Philippine judiciary to take a more active role in the enforcement ofenvironmental values and the protection of environmental rights.10

In this paper, a proposed environmental writ will be referred to as the Writ of

Gaia, a term borrowed from James Lovelocks’ Gaia Hypothesis, which classifies theplanet earth as “not only an ecosystem with interconnected parts, but a whole livingorganism.”11 It will also undertake to discuss the role of the judiciary in light of thenational environmental policy, learnings and practices in different jurisdictions, andultimately, aims to justify the need for its adoption for the advancement of theFilipinos’ constitutionally - guaranteed right to a healthy environment.12

7 World Bank Report on the Philippine Environment, Supra Note 3.

8 Philippine Poverty Statistics, http://www.nscb.gov.ph/poverty/2006_05mar08/table_2.asp, (last visited 6 March2010).

9 Dr. Parvaez Hassan and Azim Hazfar, Securing Environmental Rights Through Public Interest Litigation inSouth Asia, 22 Va. Envtl. L.J. 215 (2004).

10 Reynato S. Puno, Chief Justice of the Supreme Court, Delivered on the occasion of Philippine ConstitutionDay (Feb. 8, 2009).

11 Angelina P. Galang. The Philippine Environment in the Ecozoic Age: Principles of Environmental Science inthe Philippine Setting 33 (2009).

12 Philippine Constitution, Art. II, S. 16.



II. The National Environmental Policy and the Public Trust

Doctrine

On a policy level alone, the Philippines is said to have one of the world’s mostdeveloped approaches to environmental protection and preservation. It is afundamental State policy under Section 16, Article II of the Constitution, whichprovides that:

The State shall protect and advance the right of the people to a balanced and healthfulecology in accord with the rhythm and harmony of nature. The Supreme Court interpreted this policy as an actionable right in the

landmark case of Oposa v. Factoran13 The ponencia by Justice Davide characterized it,viz:

While the right to a balanced and healthful ecology is to be found under the declarationof Principles and State Policies and not under the Bill of Rights, it does not followthat it is less important than any of the civil and political rights enumerated in thelatter. Such a right belongs to a different category of rights altogether for it concernsnothing less than self-preservation and self-perpetuation- the advancement of whichmay even be 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 toexist from the inception of mankind. Gatmaytan believes that this statement changed the way in which the Principles

and State Policies in the Constitution were viewed and invoked. According to him: This statement is groundbreaking in that constitutional authorities inthe Philippines have always believed otherwise. The Principles and StatePolicies of the Constitution are the political creed of the nation, whichsets out the fundamental obligations of the government. “It is incumbentupon the people to demand fulfillment of these governmental dutiesthrough the exercise of the right of suffrage.” These principles may aidthe courts in their determination of the validity of statutes or executiveacts in justiciable cases, but Joaquin Bernas maintains that they were notintended to be self-executing principles ready for enforcement throughthe courts. They are, rather, directives addressed to the executive andlegislative branches of the government. If there was a failure on theirpart to heed the directives, the people’s remedy would be political andnot judicial.14

13 G.R. No. 101083, 30 July 1993.

14 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, citing Sinco (1962)and Bernas (1988), The Georgetown International Environmental Law Review, Vol. 15:457, p. 480 (2003).

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Beyond this express recognition in the Constitution, another principle whichrationalizes the right of the people to invoke the right to a healthy environment canbe found in the recognition of the public trust doctrine. In essence, this principlerecognizes the role of the State as a trustee of common resources and preserves forthe public its common use. Concomitant with this recognition is the imposition onthe State the responsibility to protect what is considered as a public right.15 TheAmerican case of Sierra Club v. Block involving wilderness is instructive:

“Under the ‘public trust doctrine,’ which is a common law concept, allpublic lands of the nation are held in trust by the government by thepeople for the people of the whole country, with the government havingthe duty under the doctrine to protect and preserve the lands for thepublic’s common heritage.”16

The origin of this doctrine can be traced to Roman law concepts of common

property. “Under Roman law, the air, the rivers, the sea and the sea shore wereincapable of private ownership.”17 Since then, the “basic premise of the trust remainsfundamentally unchanged.”18 It serves two purposes: “it mandates affirmative stateaction for effective management of resources and empowers citizens to questionineffective management of natural resources.”19

More than the embodiment in the Constitution of the right to a healthy

environment and the recognition that this right is enforceable in Philippine courts,the country’s environmental framework is also hailed as being “world class, formidableand robust.”20 Often cited are the more recent legislations such as the Clean Air Act(1999), the Ecological Solid Waste Management Act (2000), and the Clean WaterAct (2004), “lauded for laying down a comprehensive framework for air quality,solid waste and water quality management, respectively, in the place of piece-meallegislation that previously governed these matters.”21

Despite this, the failure of the institutional and governance aspects of

environmental protection has thwarted the ultimate goal of these legislative efforts:to provide effective solutions to environmental problems that have continuallyplagued the country. La Viña even commented that “since [the time that Oposa] wasdecided in 1994, the Philippines has lost more of its forest cover.”22

15 Bryan A. Garner, Black’s Law Dictionary (8th ed. 1999).

16 Sierra Club v. Block, 622 F. Supp. 842 (1985).

17 California State Lands Commission. The Public Trust Doctrine, available at http://www.slc.ca.gov/policy_statements/public_trust/public_trust_doctrine.pdf (last visited 16 March 2010).

18 Id.

19 Id.

20 Antonio La Viña, The Future of Environmental Law and Governance, 83 PHIL LJ 388, p. 415 (2008).

21 Id., p. 415.

22 Id., p. 389.



It is in light of this inadequacy that environmental practitioners have turnedto the judiciary and sought the adoption of a more practical and effective measure tocomplement the enforcement of existing constitutional, policy and legislativefoundations. This, notwithstanding, the question remains: what authority does thejudiciary have in addressing these shortfalls?

III. The Role of the Judiciary

Traditionally, judicial power has been restricted to the court’s authority “tosettle actual controversies between real conflicting parties through the applicationof a law.”23 However, since the celebrated case of Marbury v. Madison,24 judicial powerhas been reinvented to include the duty to strike down laws in opposition to theConstitution. In the field of environmental law enforcement in the Philippines, judicialreview is considered the major tool by which the Supreme Court has affected bothits evolution and policy. La Viña writes that “the judiciary influences environmentalmanagement through its power of judicial review. Specifically, courts:

� adjudicate “conf licts and violations that arise out of theimplementation and enforcement of laws dealing with the use of naturalresources and impact of human activities on public health and theecosystem,” and

� decide on the just apportionment of limited resources25. However, beyond the power of the Court to settle actual controversies presented

before it, the Court likewise has the power to promulgate rules to guide futureconduct. Under Sec. 5(5) of Art. VIII of the Constitution:

“The Supreme Court shall have the following powers:xxx(5) Promulgate rules concerning the protection and enforcement ofconstitutional rights, pleading, practice, and procedure in all courts…” 26

Yale Law Professor Peter H. Schuck, citing political scientist Richard E.

Neustadt, points out: “the constitutional arrangements known as ‘separation ofpowers’ is really a messy system of separate institutions sharing power.” Theboundary lines between what each of the branches may and may not do are all ill-defined, except in the clearest cases, these lines are politically and legally contestable,intensifying the competition over jurisdiction and power. xxx In such competitivesystems, the courts are often the joker in the constitutional deck.”27

23 Joaquin G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary 937 (2003).

24 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803).

25 La Viña, Supra Note 20, p. 415.

26 Philippine Constitution, Art. VIII, S5(5).

27 Speech of Peter H. Schuck. Baldwin Professor of Law, Yale Law School, New Haven, CT, March 2004,available at http://islandia.law.yale.edu (last visited 25 March 2010).

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A. The Rule-making Power of the Supreme Court

As presented above, the Constitution confers upon the Supreme Court thepower to promulgate not only procedural rules in relation to the practice of law butencompasses an expanded rulemaking power in the enforcement of constitutionalrights.28 The rationale for this mandate was explained by Chief Justice Puno as areaction by the drafters of the 1987 Constitution in their reexamination of the balanceof powers between the three branches of government. He states:

“The re-examination easily revealed under the then existing balance of power, theExecutive, thru the adept deployment of the commander-in-chief powers, can runroughshod over our human rights. It further revealed that a supine legislature canbetray the human rights of the people by defaulting to enact appropriate laws, for thereis nothing you can do when Congress exercises its power to be powerless. It is for thisreason and more, that our Constitutional Commissioners, deemed it wise to strengthenthe powers of the Judiciary, to give it more muscular strength in dealing with the non-use, mis-use, and abuse of authority in government.”29

It must be noted that the 1987 Constitution was drafted with a “mission to

carry out the socio-economic agenda of the People Power revolution.”30 At a timewhen political and social revolution were the foremost concerns, the authors of theConstitution sought to end judicial submissiveness and created a more empoweredcourt, subject only to the limitation that this power cannot be exercised to altersubstantive rights.31

Since the right to a balanced and healthful ecology has been established as an

actionable right, it then falls within the role of the courts to interpret thisconstitutional provision and provide a procedure for its enforcement.

IV. Judicial Activism in India and the Doctrine of Separation of

Powers

An extension of the question on the authority of the judicial branch tounilaterally promulgate the proposed rules involves the challenge to overcome theobjection that such rules violate the principles espoused under the doctrine ofseparation of powers. These warnings become more real than apparent whenconsidered vis-à-vis the proactive stance taken by India’s courts in the enforcementof its laws. The evolution of the environmental law in India and the court’s role canbe summarized, viz:

28 Philippine Constitution, Supra Note 26.

29 Chief Justice Reynato S. Puno, View from the Mountaintop, Keynote Speech at the National Consultative Summit onExtrajudicial Killings and Enforced Disappearances – Searching for Solutions, Manila Hotel, July 16, 2007.

30 Raul S. Pangalangan. Chief Justice Hilario G. Davide, Jr: A Study in Judicial Philosophy, Transformative Politics andJudicial Activism. 80 PHIL LJ 538, p. 548 (2006).

31 Andres v. Cabrera, 127 SCRA 802 (1984).



“Prior to the late 1970s, the Supreme Court’s decisions were generallycharacterized by judicial restraint. It avoided confronting Parliament onissues of economic regulation and civil liberties, preferring to help establishthe legitimacy of the Central government. It was not until the emergencyperiod in the mid-1970s that the Court began to establish itself as apowerful activist force. In 1975, in response to charges of election fraudin the election of 1971, Prime Minister Indira Gandhi declared a state ofemergency and suspended civil rights across the country to maintain controlover her position. She forced a number of economic reforms throughParliament, as well as some more controversial legislation, including aconstitutional amendment that confirmed her election in 1971. Steppingforward in such an uncertain era as a protector of the people, the Courtintervened in the case of Indira Gandhi v. Raf Narain and declared theamendment unconstitutional.

In the twenty-five years following the emergency period, the SupremeCourt has continued to reinvent itself. Taking on the role of “the lastresort of the oppressed and bewildered,” the Court initiated a period ofjudicial activism in a wide range of legal areas. One of the most importantjudicial reforms came with the establishment of public interest litigation(PIL), which enables any citizen to bypass ordinary legal proceedings andappeal directly to the Supreme Court to protect his/her fundamentalrights. In the 1984 case of Bandua Mukti Morcha v. Union of India, JusticeP. N. Bhagwati stated that if a person was physically or economically unableto approach the Court, he/she “may move the Court even by just writinga letter,” because the legal system would otherwise be inaccessible tosome of its citizens.”32

In the Bandhua case, the Court decided to “abandon the laissez-faire approach in

the judicial process particularly where it involves a question of enforcement offundamental rights and forge new tools” to make “fundamental rights meaningfulfor the large masses of people.” In this latter ruling, two major developments weredeclared by the Court. First, that the right to a healthy environment is a fundamentalright and that in enforcing this right, the Courts liberalized the rule on standing.33

Beyond these pronouncements, the Supreme Court of India is heavily criticized

for its reaction in environmental litigation when it compensated for what the Courtperceived as inadequacies in legislation by expanding its own rules and by creating“its own system of environmental protection....”34 The strong stance taken by theIndian Supreme Court is evident in the 1998 Delhi Pollution case wherein the Court,embracing its activist role, issued a controversial order suo moto mandating the

32 J. Mijin Char, A Critical Examination of the Environmental Jurisprudence of the Courts of India, 10 Alb. L.Envtl. Outlook J. 197 (2005).

33 Id.

34 Id.

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conversion of the entire Delhi fleet of diesel-powered buses to compressed naturalgas (CNG)35 The Court’s ruling in this case was met with strong opposition and wascriticized as a usurpation of the powers granted to other enforcement agencies.36

S.P. Sathe, the director of the Institute of Advanced Legal Studies in Pune, India,commented that the Court’s action in this case was beyond “(Judicial) activism” butrather “. . . is excessivism” as the court undertook “responsibilities normallydischarged by other co-ordinate organs of the government.”37

This same objection is presented with regard to the proposed judicial reform.

Since the environmental writ will be the product of the Supreme Court’s initiative,there is a danger that judicial power over environmental cases may be extendedbeyond the limits of the Court’s authority as embodied in the Constitution. It isfeared that this unwarranted broadening of the powers of the Court will violate thedoctrine of separation of powers and concomitantly, the system of checks and balanceslaid down to prevent arbitrary State action. Further, the dissenting opinion of a USSupreme Court Justice in the leading environmental case Sierra v. Morton is stillrelevant:

“Ours is not a government by the Judiciary. It is a government of threebranches, each of which was intended to have broad and effective powerssubject to checks and balances. In litigable cases, the courts have greatauthority. But the founders also intended that the Congress should havewide powers, and that the Executive branch should have wide powers. All these offices have great responsibilities. They are not less swornthan are the members of the Court to uphold the Constitution of theUnited States.”38

The invocation of the doctrine of separation of powers and the charge of judicial

activism, however, fails to justify the abandonment of the proposed judicial reform.Besides the fact that it has been established that it is within the Court’s rule-makingpower to promulgate such rules, the opposition loses force when viewed in light ofthe history of two writs adopted and currently enforced by the Court – the Writs ofAmparo and Habeas Data. Particularly, in the case of the Writ of Amparo, thesame objections were raised and struck down as being misplaced and at best,inadequate.

35 S.C. Writ Pet. (Civil), M.C. Mehta v. Union of India (July 28, 1998) (No.13029/1985), available at http://www.elaw.org/resources/text.asp?ID=1051 [hereinafter Delhi Pollution Case 1998].

36 Armin Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and theLimits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).

37 S.P. Sathe, Judicial Activism: The Indian Experience, Wash. U. J.L. & Pol’y 29, 40 (2001).

38 405 U.S. 727 (1972).



V. Judicial Activism and The Writ of Amparo

When the Rule on the Writ of Amparo took effect last October 24, 2007,39

quick opposition emerged when “some have decried that the Supreme Court hasbecome an ‘activist court,’ contrary to its traditional mandate of ‘passivity.’40 Thisobjection, however, was quickly muted because of the majority consensus that thecurrent rule to protect the right of the people to life, liberty and security, in place atthat time, was viewed as inadequate, viz:

“Presently, the writ of habeas corpus is unable to provide adequateprotection to the right to life, liberty and security of the person sincedenial of custody by the respondent would usually lead to the dismissalof the petition. Moreover, the petition for habeas corpus is not theappropriate remedy where the person is arrested by the police who claimedto have released him but still continued to be missing.”41

Pangalangan even painted judicial activism in a positive light when he described

it as a different matter than ordinary activism identified with progressive socialcauses. He says:

“Judicial activism, rather, refers to a judge’s readiness to use his court,his judicial decisions, or to use, in a more precise legal term, the power ofjudicial review, to advance substantive social or political causes.42

Thus, the judicial attempt to fill the gaps in the procedural remedies to protect

these constitutional rights was preferred and supported. The same situation presently exists in the development of the Rule on the

Writ of Gaia. Since there are recognized procedural lapses in the enforcement ofenvironmental laws, the more active role that the judiciary has taken should not bea deterrent to the adoption of these rules.

As regards the invocation of the doctrine of separation of powers, the objections

resonate the often-quoted fear that the participation of the Supreme Court will“dwarf the political capacity of the people.”43 Since the judiciary is an independentbranch, unelected through popular will, the judiciary’s decision was viewed as anunaccountable judgment that is more prone to abuse than the discretion exercisedby the other branches of government. Therefore, the objection goes, allowing the

39 Supreme Court, A.M. No. 07-9-12-SC.

40 Felipe Enrique M. Gorzon Jr. and Theoben Jerdan C. Orosa. Watching the Watchers: A Look Into the Drafting of theWrit of Amparo 82 PHIL LJ 8 p. 11 (2008).

41 Id.

42 Pangalangan, Supra Note 30.

43 Flast v. Cohen, 392 U.S. 83, 120 (1968) (Douglas, J., concurring opinion, quoting J. Thayer, John Marshall 106,107 (1901).

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Courts to legislate will be an additional and possibly an unrestricted avenue forpossible abuse.

However, it must be noted that an important conception about both the

principles of separation of powers and checks and balances is that while the threebranches of government are considered as independent from each other, thedelimitation of their powers are not absolutely severed from each. Instead, they areinterdependent and, at times, there may be a certain degree of blending of theseallocated powers and functions.44 Considering that all three branches work towardsthe same ends, it is impracticable, if not impossible, to maintain complete separationof each of the three branches. In the words of Justice Laurel, “The classical separationof governmental powers, whether viewed in the light of political philosophy ofAristotle, Locke or Montesquieu, or of the postulations of Mabini, Madison orJefferson, is a relative theory of government. There is more truism and actuality ininterdependence than in independence and separation of powers.”45

VI. The Nature and Functions of Writs

In recent years, the Court has actively utilized its rule-making power throughits adoption of the rules on two writs complementary to the writ of habeas corpus.Aside from the Writ of Amparo, which has already been described above, the Courtalso adopted the Rules on the Writ of Habeas Data. While these two writs wereconceived to address extrajudicial and forced disappearances, the latter differs as itprimarily addresses the concern of access to information, a privilege which the Writof Gaia likewise seeks to provide. Before delving into the substantive content of theproposed writ, however, an overview discussion on nature and functions of writs isbeneficial.

In general, a writ is defined as a “court’s written order, in the name of a state

or other competent legal authority, commanding the addressee to do or refrain fromdoing some specified act.”46 It has a long history, which can be traced to its formalorigin, viz:

“…to the Anglo-Saxon formulae by which the king used to communicatehis pleasure to persons and courts. The Anglo-Norman writs, which wemeet with after the Conquest, are substantially the Anglo-Saxon writsturned into Latin. But what is new is the much greater use made of them,owing to the increase of royal power which came with the Conquest.”47

44 Vincente G. Sinco, Philippine Political Law: Principles and Concepts, 128 (1962).

45 Cited in. Reynaldo B. Aralar, Separation of Powers and Impeachment. 13 (2004).

46 Garner, Supra Note 15.

47 Id., citing W.S. Holdsworth, Sources and Literature of English Law 20 (1925).



One of the writs commonly seen as part of the common law of England is theWrit of Ne Exeat Regno. This writ is issued by the king when he wants to “prohibitany part of his subjects from going into any parts without license.” By virtue of thiswrit, “subjects owed an obligation to fight for the king and to ensure [that] they wereavailable…” The purpose behind the issuance of this writ is to protect the interestsof the State and to restrain departures of individuals owing taxes to the government.At present, in Pennsylvania and Illinois, this writ has evolved to contemplate casessetting equitable bail and restrain debtors from leaving the jurisdiction, at the suitof the private creditors.48

Other examples of writs, which originated from the English government include:

the Writ of Scire Facias, which was issued in the name of the king to show cause whypatents of land should not be repealed or revoked; and the Writ of Procedendo AdJusticium, which is issued when judges of any subordinate court cause delay to theparties, by not rendering judgment when they ought to do so.49

Aside from these, this jurisdiction also has three major writs, which are relevant

– certiorari, mandamus and injunction. Although these three are different in theirnature and functions, (i.e., certiorari seeks to annul, mandamus seeks to mandateand injunction seeks to prevent) common to these writs is the lack of speedy, adequate,available remedy at law. They may be invoked only in cases where great andirreparable injury to the plaintiff is sought to be avoided. Similar to these remedies,the proposed Writ of Gaia seeks to “address violations of [environmental] lawsinvolving ‘such magnitude as to prejudice public welfare,’ and for which the delay ofa protracted trial must be urgently avoided.

VII. The Writ of Gaia

Unlike the Writ of Habeas Corpus, which is an English innovation, and theWrit of Amparo, which was first invoked in Latin America, the Writ of Gaia will bea purely Filipino invention. Chief Justice Puno himself confirmed this at a forum,saying that “we are proud to announce to the world that we have a writ that willprotect our right to a balanced and healthy ecology which does not come from theWest or Latin America. It will come from the Philippines itself.”50 Some of the salientfeatures and the needs that these proposals seek to address are discussed below.

A. The Court-supervised Environmental Impact Statement

The Writ of Gaia seeks to take advantage of the moribund EnvironmentalImpact Statement (EIS) process currently in place in the country. Although

48 Id.

49 Id.

50 Edmer Panesa, “SC to Introduce Writ of Kalikasan,” available at http://www.mb.com.ph/articles/241225/sc-introduce-writ-kalikasan, 31 January 2010, (last visited 2 February 2010).

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promulgated in the 1970’s, the EIS System remains underutilized because of severalweaknesses found in its implementation. Gatmaytan highlights these as follows:

“First, there is a lack of capacity to fully appreciate the EIS especially inremote areas” because of the lack of sufficient expertise to carry out theresponsibilities of agencies and LGUs contained in the laws. Second, there is a “lack of documentation available to prepare acomprehensive assessment” especially in identifying environmentallycritical areas. Third, there are “rampant violations of the law” due to the insignificantpenalties imposed under the system. Fourth, there is DENR reluctance “to deny environmental compliance

certificates for investment projects because of the need to accelerate the flow offoreign investment into the Philippines.”

Lastly is the presence of badly executed public participation and public

consultations, which have created negative impacts on stakeholders especially thelocal communities adversely affected by the proposed project. Often, they are not“aware of the provisions on public participation and social acceptability of projectsunder the system’s implementing rules and regulations.”51

The Rules on the Writ of Gaia seek to remedy these infirmities by mandating

a court-supervised EIS to be conducted, which will command the responsible agenciesto prepare an EIS strictly in accordance with the comprehensive requirements ofthe law. This EIS will, then, be evaluated by the court having jurisdiction over thepetition to ensure that compliance thereto was not haphazardly made. Evaluationalso ensures that the requirements of public participation and social acceptability ofthe project are met. The mandatory nature of this order seeks to remedy the hesitationof the national agencies to make a detailed statement, despite the political policytowards prioritizing investments and development rather than environmentalconcerns.

In the end, the availability of this measure hopes to echo the US Supreme

Court’s ruling on the case of Calvert Cliffs v. US Atomic Energy,52 which requires thatenvironmental values be considered together with other governmental concerns inassessing whether or not a project ought to continue and that “considerations ofadministrative difficulty, delay or economic cost will not suffice to strip the sectionof its fundamental importance.”

51 Gatmaytan, Supra Note14.

52 449 F.2d 1109, 149 U.S. App.D.C. 33 (1971).



Moreover, the court-supervised EIS will remedy the problem of inadequateaccess to vital environmental information necessary to be considered in the decision-making process. This will be achieved by requiring the respondent (both private andgovernment) to provide such information to the responsible agency tasked to makethe detailed EIS. In addition, provisions allowing for the court to order the productionof documents vital to the petition as well as the provisions permitting the petitionerto inspect the premises and to conduct tests thereon, will also allow the responsibleagency greater access to accurate information. This could also be used as a means toverify the information submitted to the court and the responsible national agenciesby the respondent.

Another weakness that this measure seeks to address is the lack of active

public participation. This is especially important in the case of the local communitiesthat are directly affected by the project since they have the greatest interests topreserve – that no significant and irreparable damage or risk be done to theenvironment. Thus, in the Writ of Gaia, public participation will be mandated by thecourt. It will even require comments made in the draft of the EIS to be attached tothe final EIS. Through this provision, it is hoped that public participation will not beviewed merely as an inconvenient procedural requirement, but rather as a meaningfulmeans to include the information gained from the public’s sentiment into the handsof the country’s decision-makers.

B. The Environmental Protection Order and the Writ of Continuing

Mandamus

SC Administrative Order No. 23-2008, promulgated on 23 January 2008,designated 117 first and second level courts to serve as “green courts.” These greencourts were given jurisdiction to hear, try and decide cases involving violations ofenvironmental laws within their territorial jurisdictions.

The Court followed this up with the Draft Rule of Procedure for Environmental

Cases (“Draft Rules”), proposed in 2009. These proposed rules govern the procedurefor civil, criminal and special civil actions before the designated green courts.53 Theserules are instructive as to their possible inclusion in the Rules on the Writ of Gaia.

The Draft Rules provide for an Environmental Protection Order (EPO), defined

as “a written order issued by the court directing or enjoining any government agencyor person to undertake activities aimed at protecting, preserving, rehabilitating orrestoring the environment during the pendency of the case involving a violation ofan environmental law.”54

This EPO may be temporary, as is provided under Rule 2, Section 3 of theDraft Rules, viz:

53 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 3 (2009).

54 Draft Rule of Procedure for Environmental Cases, Rule 1, Section 6 (2009).

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SEC. 3. Provisional remedies. — If it shall appear from the verifiedcomplaint and its attachments that there is a prima facie violation of anyenvironmental law, the court may issue ex parte a temporary EPO to beeffective only for a period of twenty (20) days from date of issuancethereof. Within the said 20-day period, the court must order said party orperson to file his or her comment and appear in a hearing on the prayerfor a writ of preliminary EPO. The scheduled hearing shall be summaryin nature. The court at its discretion, may ask clarificatory questions tothe parties and their witnesses, who shall be placed under oath. The courtshall immediately resolve the application for the prayer for a writ ofpreliminary EPO within the 20-day period based on the attachments tothe complaint and statements or admissions of the parties during thehearing. A temporary EPO may be converted into one for continuing mandamus, in

recognition perhaps, of the ruling in Metropolitan Manila Development Authority (MMDA),et al v. Concerned Residents of Manila Bay55 Rule 5 Section 2 provides that:

SEC. 2. Continuing mandamus. — The court may issue a writ of continuingmandamus directing the performance of a series of acts and is effectivefor an unlimited period of time. After judgment, the court may convert the temporary EPO to a writ of

continuing mandamus. The court shall require the violator to submit quarterlyperiodic reports detailing the progress of the execution of the judgment. The courtmay also require the concerned government agency to monitor such progress.

The writ shall terminate upon a sufficient showing that the order has been

implemented to the satisfaction of the court in accordance with Section 14, Rule 39of the Rules of Court.

These provisional remedies may be availed of insofar as they may be applicable

in criminal cases, in accordance with Rule 10 Section 1. The Court’s decision in MMDA v. Concerned Residents of Manila Bay, and

consequently, the provision for continuing mandamus in the Draft Rules are importantbecause they address a pertinent reality in environmental cases. It is difficult toidentify a particular point in time when an environmental problem begins to becomeone. When the seriousness of the matter comes to light, the damage has usuallyalready been done.

Thus, if the Writ of Gaia is to be the mechanism by which continuing mandamus

can be invoked, it cannot only be a way to remedy what is already a prima facieviolation. There should also be a way by which the protection and preservation can

55 G.R. No. 171947-48, 18 December 2008.



be insured pro-actively and sought at the first instance, applying the precautionaryprinciple as will be discussed in the subsequent sections.

C. Delay in the Resolution of Environmental Cases

Despite the designation of the Supreme Court of first and second level courtsto serve as green courts, during a national conference held to discuss theenvironmental issues faced by the country’s courts, it was pointed out that morethan 3,000 environmental cases remained unresolved nationwide.56

Data from the environmental group Haribon Foundation as of January 2008

puts the exact number of pending environmental cases at 3,120, the hot spots beingthe Bicol region, Western Visayas and Region 4-B, composed of the provinces ofMindoro, Marinduque, Romblon and Palawan. They note that the filing ofenvironmental cases has “increased tenfold from 1996 to 2008.” Of the total numberof cases, 109 were filed before 1998, meaning that 3.5% of these have remainedundecided after a decade. The numbers may not even be completely reflective, asHaribon has gleaned from statistics provided by the organization Alyansa Tigil Minathat there are more mining cases pending than what has been documented by thePhilippine Judicial Academy.57

The delay in the proper resolution of these cases makes the adoption of the

Writ of Gaia imperative considering that the unimpeded damage done to theenvironment may merely result in a hollow victory for these cases.

D. Locus Standi Threshold and Access to Justice

In his speech, Chief Justice Puno also posed the question of “how furtherdown should the courts lower the threshold on locus standi?” This question waspropounded in the context of the pending case filed by the “resident sea mammalsof the Tanon Strait,” against the Japan Petroleum Exploration Company, Ltd., whichseeks to stop further offshore exploration in the interest of protecting the“petitioners” habitat.58

In this regard, the Chief Justice expressed that it was necessary that any ruleformulated must “strike a proper balance between the need to encourage citizen’ssuits and the danger that unregulated citizens’ suits may bring about nuisance cases.”59

56 Bordadora, Norman, SC Eyes New Writ to Speed Up Environmental Cases, 31 January 2010, available at http://newsinfo.inquirer.net/ breakingnews/nation/view/20100131-250512/SC-eyes-new-writ-to-speed-up-environmental-cases (last visited 10 March 2010).

57 Marifel Moyano, Green Benches, 10 January 2008, available at http://www.haribon.org.ph/Topic/32/Green-Benches,(last visited 13 February 2010.

58 Reynato S. Puno, Chief Justice of the Supreme Court. Opening Remarks at the Forum on Environmental Justice:Upholding the Right to a Balanced and Healthful Ecology held on April 16-17 2009, at the University of theCordilleras, Baguio City.

59 Id.

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Bonine writes that “standing to sue is the first step in access to justice.”60 Thisis even more so in the field of environmental and other areas of public interest law,where citizen’s suits for enforcement make valuable and groundbreakingcontributions. In recognition of this, many countries have liberalized their own ruleson standing to sue, providing for these either in their Constitutions or in judicialdecisions.

The Philippine rules on standing to sue are merely procedural, and have been

relaxed in cases of paramount or transcendental importance. Specifically, in IntegratedBar of the Philippines v. Zamora,61 the Supreme Court en banc stated that:

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. Innot a few cases, the Court has adopted a liberal attitude on the locusstandi of a petitioner where the petitioner is able to craft an issue oftranscendental significance to the people. Thus, when the issues raisedare of paramount importance to the public, the Court may brush asidetechnicalities of procedure. In this case, the IBP has advancedconstitutional issues which deserve the attention of this Court in view oftheir seriousness, novelty and weight as precedents. (xxx) …the legalcontroversy raised in the petition almost certainly will not go away. Ittherefore behooves the Court to relax the rules on standing and resolvethe issue now, rather than later. What constitutes a “question of transcendental importance” is not categorically

defined. However, Justice Florentino P. Feliciano has qualified this by indicating thefollowing determinants: “(1) the character of the funds of other assets involved inthe case; (2) the presence of a clear case of disregard of a constitutional or statutoryprohibition by public respondent agency or instrumentality of the government; and(3) the lack of any other party with a more direct and specific interest in raising thequestions being raised.”62

In 2007, Justice Consuelo Ynares-Santiago presented three options to address

the legal issue of standing to sue in environmental cases. These were: First, complete liberalization of the rules on standing for environmental cases; Second, selective liberalization of rules, such as waiver of standing incases of transcendental importance; and

60 John E. Bonine, Standing to Sue: The First Step in Access to Justice (School of Law, University of Oregon, 1999), inhttp://www.law.mercer.edu.elaw/standingtalk.html (last visited 6 March 2010).

61 G.R. No. 141284, 15 August 2000.

62 cited in Jumamil v. Café, et al, G.R. No. 144570, 21 September 2005.



Last, adoption of the rule that environmental cases are imbued with publicinterest, where rules on standing and cause of action may be interpretedliberally.63

Justice Ynares-Santiago’s first option can be likened to the “open standing”

provisions used by the Land and Environmental Courts in New South Wales,Australia. Under these, “any person may approach the court alleging a breach orthreatened breach of environmental law.”64 Their application has promoted publicinterest litigation and has encouraged the “reappraisal of the appropriateness ofmany of the established practices and procedures of the courts in determininglitigation,” such as the rules on costs.

The objection that such a liberal approach to standing presents a “danger that

unregulated citizens’ suits may bring about nuisance cases” was not confirmed bythe Australian experience. Justice Stein noted that the open standing provisions“never exceeded 20% of registrations for civil enforcement and judicial review”brought by individual citizens and NGOs in any year. If anything, the availability ofopen standing provisions “highlighted the significant procedural hurdles inhibitingaccess to the court in environmental cases,” such as the high of costs of litigation.65

In the Philippines, “While many NGOs, POs, other community groups and

environmental law practicioners have expressed [interest] in or are already currentlyengaged in environmental law enforcement, their inability to prosecute criminalactions constitute barriers to effective enforcement. Save for the provisions of theClean Air Act and Ecological Solid Waste Management Act on citizen’s suits, thereis no legal recognition of citizens’ right to bring actions for violations of environmentallaws.”66

The proposed Writ of Gaia seeks to address this and may be used as an avenue

through which greater access to courts is provided by having more liberalized ruleon standing.

Accompanying the liberalized threshold on standing and as part of efforts to

propel greater access to justice, the Writ of Gaia will also embody the principlespronounced in the Convention on Access to Information, Public Participation inDecision-making and Access to Justice in Environmental Matters (otherwise knownas the Aarhus Convention). The same principles enumerated therein are reiteratedin Principle 10 of the Rio Declaration on Environment and Development, whichcalls for “public access at the national level to environmental information; access topublic participation in the decision-making; and public access to judicial andadministrative proceedings in environmental matters.”67

63 Ynares-Santiago (2007) quoted in La Viña, Supra Note 20, p. 749-50.

64 Paul Stein, Major Issues Confronting the Judiciary in the Adjudication of Cases in Environment and Development, COURTSYSTEMS J, Special Edition, p. 216 (1999).

65 Id., p. 271-72.

66 La Viña, Supra Note 20, p.414.

67 World Resources Institute, World Resources 2002-2004: Decisions for the Earth, Balance, Voice and Power, WashingtonDC (2003).

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Again, it is the court-supervised EIS System of the Writ of Gaia that will act asthe main mechanism that will give life to these declarations of principles.

In the Philippines, “While the legal framework for public participation is already

strong, one glaring flaw is the absence of an effective mechanism to enforcecompliance with the requirements set by law.”68 Therefore, it is proposed that theWrit of Gaia be employed in order to act as an effective deterrent and a speedyremedy against non-compliance with public participation requirements.

E. Natural Resource Damage Liability

Another feature, which the Writ of Gaia intends to advance is the inclusion inits provisions of the so-called Natural Resource Damage (NRD) Liability.

Natural Resource Damage (NRD) Liability started as a directive of the European

Union to prevent and remedy environmental damage by establishing a frameworkon environmental liability based on the polluter pays principle in internationalenvironmental law.69 Essentially, the intent of the NRD provisions are to restoredamaged resources to their original condition and forces the parties responsible forthe contamination to clean it up at their own cost.70 What started as a regionalEuropean custom, this principle is now increasingly accepted by the internationalcommunity as it is now embodied under Principle 16 of the Rio Declaration onEnvironment and Development.

NRD costs contemplate two components - primary and compensatory. These

costs include the cost to restore premises near site including remediation (primary)and the cost for value of “lost use restoration activity including acquisition ofequivalent.”71 Although imposing financial liability, however, the nature of the actionis remedial in nature. The goal of its imposition is not punitive but merely that ofrestoration. The damages sought to be compensated include the cost of replacing,restoring, or acquiring the equivalent of the environmental resource.72

The same principle may be adopted in enforcing the Writ of Gaia. As a

consequence of finding the respondent responsible for the environmental harm, inenforcing the writ the court may likewise enforce such measures aimed at protecting,preserving, rehabilitating, restoring or compensating for the damage or risk to theenvironment. Because of the high burden of costs associated with correcting

68 La Viña, Supra Note 20.

69 Hannes Descamps, DENR Belgium Legal Counsel, Addressed at the International Workshop on EnvironmentalDamage by Black Seas University of Brest: Natural Resource Damage Assessment under the EC Directive onEnvironmental Liability (May 18-19, 2006).

70 Michael R. Hope, Natural Resource Damage Litigation under the Comprehensive Environmental Response, Compensation,and Liability Act, 14 Harv. Envtl. L. Rev. 189 (1990).

71 Id.

72 Sharon Shutler, NOAA Office of General Counsel for Natural Resources. Natural Resource Damages, availableat http://coralreef.gov/injury/injury_helton_fall06.pdf (last visited on 16 March 2010).



environmental damage, the adoption of the NRD in the rules serves a dual purpose:first, it imposes the costs on the perpetrator themselves; and second, it alleviatessocietal costs associated with the continuous depletion of natural resources.

F. Burden of Proof and the Precautionary Principle

Chief Justice Puno likewise noted that proving damages in environmental caseswas often difficult. This was because these were often based on statistics andprobabilities and as such could not adequately predict future impacts and effects. Inthis regard, he suggested an exploration of the adoption of the precautionary principle.

Tolentino traces the origin of this principle in the mid-1980s “as part of thedomestic laws of the then West Germany.” He goes on to state that since then, it“has been incorporated in many international environmental treaties since 1983”and cites that the “1992 Bergen Ministerial Declaration on Sustainable Developmentin the ECE Region… was the first international instrument to consider thePrecautionary Principle as part of customary international law, and therefore bindingon all signatory states…”73

The often-cited statement of this principle is found in the Rio Declaration of

1992. Principle 15 of the Declaration reads: In order to protect the environment, the precautionary approach shall bewidely applied by States according to their capabilities. Where there arethreats of serious or irreversible damage, lack of full scientific certaintyshall not be used as a reason for postponing cost-effective measures toprevent environmental degradation. The precautionary principle was applied by the Indian High Court in the case

of Andhra Pradesh Pollution Control Board vs. MV Nayudu.74 In justifying the principle,the Judges referred to Charmian Barton, from the Harvard Law Review, as follows:

“There is nothing to prevent decision makers from assessing the recordand concluding there is inadequate information on which to reach adetermination. If it is not possible to make a decision with “some”confidence, then it makes sense to err on the side of caution and preventactivities that may cause serious or irreversible harm. An informed decisioncan be made at a later stage when additional data is available or resourcespermit further research. To ensure that greater caution is taken inenvironmental management, implementation of the principle throughJudicial and legislative means is necessary.”75

73 Francis N. Tolentino, The Precautionary Principle: Closing the Gap between International Trade Law and

Biotechnology (2009) (unpublished, Tulane Law School) (on file with author).

74 Appeal (civil) 368-371 of 1999 Appeal (civil) 372 of 1999 Appeal (civil) 373 of 1999.

75 Id.

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The adoption of this principle likewise shifted the burden of proof requiredfor environmental cases. In these instances, a reversal was warranted, such that “it isnecessary that the party attempting to preserve the status quo by maintaining a less-polluted state should not carry the burden of proof and the party, who wants to alterit, must bear this burden.” The risk of harm to the environment or human healthwas to be determined according to a “reasonable persons test.” Stated otherwise,

The precautionary principle suggests that where there is an identifiable risk of seriousor irreversible harm, including, for example, extinction of species, widespread toxicpollution in major threats to essential ecological processes, it may be appropriate toplace the burden of proof on the person or entity proposing the activity that is potentiallyharmful to the environment76. The Philippine Supreme Court can be said to have taken a similar approach in

Hernandez v. National Power Corporation (NAPOCOR).77 The Court issued an Injunctionagainst NAPOCOR’s installation of transmission lines which would pass throughthe area where their homes were located. Studies showed that close proximity to theelectromagnetic fields generated by these lines increased the incidence of illnessessuch as cancer and leukemia. Justifying its issuance, the First Division, throughJustice Chico-Nazario ratiocinated that:

True, the issue of whether or not the transmission lines are safe is essentially evidentiaryin nature, and pertains to the very merits of the action below. In fact, petitionersrecognize that the conclusiveness of their life, health and safety concerns still needs tobe proved in the main case below and they are prepared to do so especially in the lightof some studies cited by respondent that yield contrary results in a disputed subject.Despite the parties’ conflicting results of studies made on the issue, the possibility thatthe exposure to electromagnetic radiation causes cancer and other disorders is still,indeed, within the realm of scientific scale of probability.(xxx)Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCORproject which is aimed towards the common good of the people. But, is the promotionof the general welfare at loggerheads with the preservation of the rule of law? Wesubmit that it is not. In the present case, the far-reaching irreversible effects to human safety should be theprimordial concerns over presumed economic benefits per se as alleged by the NAPOCOR. Consistent with the ruling in Hernandez, Gatmaytan has made suggestions with

regard to the quantum of evidence needed for the issuance of injunctive relief. Hehas proposed that the quantum of evidence be reduced to probable cause. As such,the applicants would only have to show that:

76 Id.

77 G.R. No. 145328, 23 March 2006.



…the acts they are attempting to enjoin would probably cause the damagethey are attempting to prevent. The danger to the environment shouldbe the primary consideration in these cases. To require a higher standardwould risk the possibility that the environment would be irreversiblydamaged while the courts attempt to resolve the merits of the case.78

In addition, Gatmaytan also recommends “reducing the burden of proof

required to determine liability for environmental damage.” The need to establish atleast a preponderance of evidence may be discouraging to potential litigants, so heproposed lowering the burden of proof for civil liability to substantial evidence.Substantial evidence, as defined in Rule 133 Section 5 of the Revised Rules of Court,the quantum of evidence required for proceedings before administrative or quasi-judicial bodies, is the “amount of relevant evidence which a reasonable mind mightaccept as adequate to justify a conclusion,” and as such is the “least demanding formin the hierarchy of evidence.”79

Abano likewise makes suggestions to prove causation in latent disease cases,

and in other actions that may be termed “environmental torts.” He acknowledgesthat establishing the connection between the act or omission and the injury caused isdifficult, given the long-term effects of toxic substances and lack of definitive medicalconclusions. In this regard, he suggests that resort be made to 3 methods:epidemiological studies, expert testimony and the strict liability principle.80

Epidemiological data establishes the “fact that the substances are capable of

producing the injuries suffered” and as such measures the probability that the injurieswere caused by the substances in question. “The evidence offers at least acircumstantial evidence of proximate cause.”81 This data is then supported by experttestimony in accordance with Rule 130 Section 49 of the Revised Rules of Evidence.

The strict liability principle “imposes liability whether or not there is fault,

negligence, malice or intent.” This principle is already existent in the New CivilCode and Consumer Act of the Philippines (R.A. 7394) with regard to product defectsand liabilities.82

Although Abano’s suggestions are anchored on examples from “toxic tortlitigation”, and as such refer to issues such as exposure to toxic waste that has beenimproperly disposed of, it is not difficult to apply his recommendations in othercases wherein human health and well-being is an indicator for violations ofenvironmental laws and standards. These instances include the harmful impacts of

78 Gatmaytan, Supra Note 14, p. 19-20.

79 Id.

80 Vivencio F. Abano, Environmental Tort: Cause of Action, Proof and Causation, PHIL JA J, Vol. 6 No. 20, p. 185(2004).

81 Id.

82 Abano, Supra Note 76, p. 188.

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the chemicals generated by Acid Mine Drainage and mine tailings on the marine andriver resources which local communities consume (as has been the case of Rapu-Rapu Island in Albay and on the island province of Marinduque) and the hazardsposed by large scale energy projects (i.e., the proposed coal-fired power plant alongthe Saranggani Bay).

CONCLUSION

The promise of a Writ of Gaia and the adoption of the doctrine of continuingmandamus in the Philippine legal arena represent efforts to “turn soft law into hard.”83

The principles in the statutes are no longer mere aspirations or pretty words, andthe courts are no longer limited to what has generally perceived as obiter in Oposa.Environmental law is becoming substantive law, such that it now warrants rules thatare all its own.

Justice Ynares-Santiago explained this as follows: Environmental cases have features that differentiate them from ordinarycivil and criminal cases. Treating them differently does not mean givingspecial favors or giving bias to environmental causes. Instead, it isrecognition that the nature of environmental cases makes it difficult forinjured parties to find redress. The special rules only try to correct thesituation to balance the playing field.84

The Supreme Court of India once said of public interest litigation:

In public interest litigation, unlike traditional dispute resolutionmechanisms, there is no determination or adjudication of individual rights.While in the ordinary conventional adjudications the party structure ismerely bi-polar and the controversy pertains to the determination of thelegal consequences of past events and the remedy is essentially linked toand limited by the logic of the array of the parties, in a publicinterest action, the proceedings cut across these traditional forms andinhibitions.85

It is generally agreed that environmental litigation involves public law, even as

it may seem to resolve private concerns. Natural resources cannot easily be replaced. The loss is not only to certain plant and animal life, but perhaps more importantly,to the capacity of the now polluted segments of the environment to regenerate and

83 Stein, Supra Note 64.

84 Ynares-Santiago (2007) quoted in La Viña, Supra Note 20.

85 Sheela Barse v. Union of India 3 SCC 596 (1986) cited in Bonine, Supra Note 60.



86 Commonwealth of Puerto Rico v. The SS Zoe Colocotroni, 682 F.2d 652 (1st Cir. 1980).

sustain life for some time in the future.86 This is what makes environmental judicialdecisions all the more important. They are bigger than the now, so to speak. Theonly difference is that the environmental dilemma confronting us is not part ofcinema’s world of make-believe.

� �

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Revisiting the Philippine

Educational System

for Everyone’s Reflection*

Rustico T. De Belen**

Education is everybody’s business. The educational system in this country ispresented and analyzed in this paper in the context of history, law and philosophyacross Philippine history. It is viewed from a developmental perspective. This paperis also premised on the notion that the culture base of Philippine education is notsimply the blending of Spanish and American civilizations that “account for thepractical and ruggedly individualistic character of the people” (Elevazo and Elevazo,1995: 2). It has also its indigenous underpinnings that Filipinos, particularly ourleaders, should understand so that they can be truly proud of themselves and use itas a platform to change society. Understanding the culture base of Philippine educationis vital to the realization of Filipino identity and the development of a responsible,productive and patriotic citizenry through education. Education is indeed an importantaspect of public governance. It is the key to a progressive and upright society.

Our system of education did not spring from a vacuum. It has historical, legaland philosophical roots. From a historical standpoint, the Philippine educationalsystem has been regarded as a hybrid, reflecting the country’s cultural and colonialhistory. Education laws and policies that have been enacted and implementedthroughout history can attest to this. As products of the particular historical, socio-economic, political and cultural conditions prevailing at the time of their passage,they have been made to serve or address the challenges and prospects faced by thecountry and society at those times (De Belen, 2003: 2). A simple perusal of thelanguage of these laws and policies reveals the legal foundation of education. However,one must pierce into their legal texts and analyze the dominant political interests,policies, behavior and attitudes of both the rulers (the government) and the ruled(the people) to understand their historical and philosophical foundations (ibid., p. 5).

* Some portions of this article were lifted from the book Educational Laws and Jurisprudence in the Philippinesby Rustico T. De Belen to be published this year.

** BA (Political Science), UP Diliman; BSN, St. Dominic Savio College; MNSA, National Defense College of thePhilippines; LLM, San Beda Graduate School of Law, and PhD (Peace and Security Administration), BicolUniversity Camp Crame Peace Program. He is currently the Deputy Director of the Supreme Court MandatoryContinuing Legal Education Office and was formerly the Assistant Secretary and OIC-Undersecretary forPolicy Planning and Legal Affairs of the Department of Agrarian Reform (DAR). He is the author of severalbooks: Education Laws and Jurisprudence (2010), Philippine Laws on Food, Drugs and Cosmetics (2010),Medical Jurisprudence (2009), Dental Jurisprudence (2009), A Praxis in Community Health Nursing (2008),Public Health Care for Community Development (2008), Nursing Law, Jurisprudence and Professional Ethics(2007), to mention a few.


Revisiting the Philippine Educational System for Everyone’s Reflection

Thus, to fully understand the legal, historical and philosophical bases of Philippineeducation over a period of time, it is essential to go beyond its constitutional mandate,statutory policies and jurisprudence in education.

Observably, Philippine culture and society value education as a means to anend. This is probably one reason why the Philippines has one of the highest literacyrates in Asia and in the world. With their professional skills, proficiency in English,ability to learn foreign languages, adjust to diverse working environments, and adaptto new cultures, Filipinos are very much in demand in many parts of the world.However, it is not enough that we put a premium on education in words; it has to betranslated into policies. Yes, education can serve as an engine of change and a roadto a successful life. But our children deserve a true Filipino education that is foundedon our own rich cultural heritage and values. They must be educated to know thecultural and colonial roots of the present Philippine education system and understandits ramifications for them to discern its true essence and philosophy, and developtheir own philosophical perspectives of education.

Elevazo and Elevazo (1995) support the author’s view on the study of thehistory and philosophy of Philippine education, thus:

The existing philosophy’s historical roots have their anchors in thematrix of Philippine culture, experience and way of life, despite attemptsby foreign colonial educators to transplant a philosophy from theirrespective cultures. It should be useful to have a clear understanding ofphilosophy’s culture base, the Filipino psyche as well as the ideals andaspirations of a people who, by accident of history, became known asFilipinos not by choice but by force of circumstances (p.1).

This paper is divided into the following periods of education history: (a) pre-historic and early education history, (b) colonial, revolutionary and commonwealthperiod, (c) post-liberation Philippine education, and (d) post-EDSA educational system.Notably, the colonial, revolutionary and common wealth period covers the threeimportant colonial periods in Philippine education history – Spanish, American andJapanese, the revolutionary and commonwealth periods of Philippine history.

Pre-Historic and Early Education History

The discovery of the Laguna Copperplate Inscription (LCI) which is datedaround 900 AD highlighted the evidence of cultural links present between the Tagalog-speaking people of this time and the various contemporary civilizations in Asia,most notably the Middle Kingdoms of India and the Srivijaya empire. It also made900 AD as the current demarcation line between prehistoric period and the earlyhistory of the Philippines. It heralded the earliest phase of Philippine history - thetime between the first written artifact in 900 AD and the arrival of colonial powersin 1521. The prehistoric period (pre-900 AD) thus covers events prior to the earliest

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Rustico T. De Belen

phase of Philippine history - the written history of what would become the Philippinearchipelago. It is presented here to enhance the discussion of pre-historic and earlyeducation history of the Philippines.

For emphasis, 900 AD is now the recognized date of the first surviving writtenrecord to come from the Philippines, the Laguna Copperplate Inscription (LCI), acopperplate measuring 8 x 12 inches which was recovered in a sand quarry at BarangayWawa, Lumban, Laguna in 1989 (Tiongson, 2008). The plate has an inscribed dateof Saka era 822, corresponding to April 21, 900 CE (Common Era). Written in theKawi Script, it contains many words from Sanskrit, old Javanese, old Malay and oldTagalog. It is evidently a legal document because it released its bearer, Namwaran,from a debt in gold amounting to 1 kati and 8 suwarnas (865 grams) (ibid.). It alsomentions Tondo, Pila and Pulilan in the area around Manila Bay and Medan (orrather, the Javanese Kingdom of Medang), Indonesia, apparently as places of tradeor business during that time.

The LCI and its Romanized transcription are shown below:

Laguna Copperplate Inscription (900 AD)

Romanized transcription

Laguna Copperplate Inscription (900 AD, which was discovered in 1987, is said to be moreadvanced script than the other systems of writing thus far discovered in the country.Source: http://www.mts.net/~pmorrow/lcieng.htm, accessed on 04/22/10.



Philippine history has long recognized the influences of ancient ancestors suchas Negritos, Indonesians and Malays in our system of education. Indigenous peoplesand indigenous cultural communities are now the more politically-correct terms.Aside from these early groups who came and settled in the Philippines, there werealso ancient foreign traders such as Chinese, Hindus, and Arabs who influenced theFilipino people’s way of life. The Malays are credited with bringing us their systemof writing known as Alibata, the ancient Filipino alphabet, although some historiansand anthropologists say that it came directly from the ancient Kavi script of Java,Indonesia. Nevertheless, the Spanish noticed that Malay natives could read and writewith common scripts in Alibata. Translated as Baybayin in Filipino, Alibata had beenused in the country even before 1567 as reported by Miguel López de Legazpi,“They [the Visayans] have their letters and characters like those of the Malays, fromwhom they learned them” (Scott (2), 1994: 94, 297). While Alibata has seventeen(17) symbols - 3 vowels and 14 consonants, the LCI is an even more advanced scriptin limited use in the country as far back as the year 900 A.D.

On top of the LCI as a prime evidence ofcivilization during pre-Hispanic times, there arealso evidences of developments in the Philippinearchipelago from Stone Age cultures in 30000BC to the emergence of advanced thalassocraticcivilizations in the 4th century AD. The firstevidence of the systematic use of Stone-Agetechnologies in the country is estimated to dateback to about 50,000 BC, and this phase in theevolution of proto-Philippine societies isconsidered to have ended with the rise of metaltools in about 500 BC, although stone toolscontinued to be used past that date (Jocano,2001: 108, 102). Notably, the LCI and otherdiscoveries such as the Golden Tara of Butuan(a 4-pound gold statue of a Hindu-Malayangoddess, found in Mindanao in 1917) and the14th century pottery and gold jewelry artifactsunearthed in Cebu are additional evidences ofthe kind of civilization that the Philippines hadhave during pre- and early history.

The fossilized portions of a human skull and jawbone of three individuals,finished stone flake tools and waste core flakes carbon dated between 20,000 BC to30,000 BC dug up at the Tabon Caves in Palawan further support the fact that therelived a people in the Philippines during prehistoric times whose civilization wasapproximately on a par with those that existed in other parts of the world. Jocano(1998) points out that:

Alibata, ancient Filipino alphabet

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…there were people here in the (Philippine) archipelago during theprehistoric times. The descendants of these early groups are now knownas Filipinos! Their accumulated experiences constitute of (sic) what wenow know as Filipino culture (p.63).

The period of Barangay states and thassalocratic (rule of the sea) trade (200AD-900 AD) saw the movement of various indigenous peoples’ groups across the countrywhich formed small political units known as a barangay, each headed by a Datu.Each barangay normally had a population of about 1000 families. Notable barangayswith more than 1000 families are Zubu (Cebu), Butuan, Maktan (Mactan), Irong-Irong(Iloilo), Bigan (Vigan), and Selurong (Manila). It was during this period that theindigenous peoples and indigenous cultural communities (IPs/CCs) had a massivecontact not only with people of neighboring barangays or communities but alsofrom the other Southeast Asian and East Asian nations, making the era known forinter-island and international trade. It also led to the development of a socio-politicaland economic hierarchy with the rise of the Datu or ruling class; the Maharlika ornoblemen; the Timawa or freemen; and the dependent class which is divided intotwo, the Aliping Namamahay (Slave) and Aliping Saguiguilid (Serfs).

Added to this are the historical and anthropological accounts on the peoplingof the Philippines such as the waves of migration, which were said to come fromvarious parts of the Asian mainland and from three great Malayan empires – theShri-Visayan, the Madjapahit and the Malayan empires during prehistoric times (Elevazoand Elevazo, 1995: 10). The ethos of the three great Malayan empires are believed“to have been influenced by the Hindu and Chinese cultures through contact in thetrading of products and through inter-marriage long before any Europeans orAmericans came to this part of the world” (ibid.). These people highly prized jars assymbols of wealth throughout South Asia, and later metal, salt and tobacco, andexchanged them with feathers, rhino horn, hornbill beaks, beeswax, birds nests,resin, rattan and others. Because of this, the IPs/ICCs in various parts of thePhilippine archipelago had tremendous contacts with traders from China, India andArab countries in earliest times. In fact, Arab missionaries came even before 1300and inhabited Sulu, Tawi-Tawi and other parts of Mindanao (ibid.). They built aformidable culture base firmly grounded on Islam, thus the Spanish colonizers failedto subjugate them and impose their religious faith.

In other parts of the country, some barangays were found to be under the dejure jurisdiction of one of several neighboring empires, among them the Malay SriVijaya, Javanese Majapahit, Brunei, Melaka empires, although de-facto had establishedtheir own independent system of rule. Trading links with Sumatra, Borneo, Thailand,Java, China, India, Arabia, Japan and the Ryukyu Kingdom flourished and led tothe emergence of a thalassocracy due to international trade through the sea. Therewere numerous prosperous centers of trade that emerged between the 7th centuryuntil the invasion of Spain in 1521, particularly in Manila, Pangasinan, Cebu, Iloilo,Butuan, to name a few. Unfortunately, almost all of these and other evidences ofcivilization were destroyed during the Spanish period.



With the remaining evidences of a civilization in the Philippines during theprehistoric period (pre-900AD) and early Philippine history (900 AD – 14th CenturyAD), the indigenous philosophy of education may not be difficult to infer. This canbe observed from the families, tribes, clans and kinship system that valued humanlife and had notions of honor and dignity. The development of prosperous barangaysdue to massive inter-island and international trade, on top of well-defined politicalorganizations and definable culture during prehistoric times are testaments to theindigenous efforts and the capacity of indigenous peoples to educate themselves intheir ways.

Colonial, Revolutionary and Commonwealth Education

Filipinos have been taught that these difficult and trying times are the periodsof struggle and liberation of the Filipino people. No amount of resistance againstcolonization could prevent the colonizers from imposing and forcing upon us theirsystems of education. They inhabited our country and imposed upon the Filipinopeople their beliefs, value system, customs and traditions in all aspects of life. Theirpolicies displayed a hybrid system of education through the amalgamation of localPhilippine culture and their colonial impositions. However, they were faced withdiverse views and struggles of patriotic Filipino leaders. Some unconditionally rejectedand fought the colonizers, including the introduction of their systems of education.Others, however, simply accepted the foreign education systems throughcollaboration. There were also those who struggled for the integration of theindigenous culture and values into their foreign systems. Thus, this period of educationhistory was marred by colonial indoctrination as the people were prevented toquestion or critically examine the teachings of colonizers, contrary to the presentconcept of education that allows critical self-evaluation and skeptical scrutiny ofone’s teachings.

Spanish Colonial Period. The Spanish colonial period (1521-1898) beginswith the arrival of European-Portugese explorer Ferdinand Magellan in 1521 andends in 1898. Spanish colonization drastically changed the indigenous system ofeducation as tribal tutors were replaced by Christian Missionaries. The educationalsystem was basically oriented towards propagation of the Catholic faith. It waselite-based, run by the clergy and served primarily the ruling class. Education wasthen a privilege that was never made available to the native Indios. The natives whowere privileged to be educated under this system were exhaustively taught orindoctrinated to be loyal to the Spanish crown and blindly obey the conquistadores.Public compulsory education was initiated and implemented through the enactmentthe Educational Decree of 1863.

The Education Decree of 1863 mandated a system of free, compulsory primaryeducation. It decreed the establishment of primary school for boys and girls in eachtown under the responsibility of the municipal government; and a normal school formale teachers under the tutelage of the Jesuits. It included the compulsory teaching

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of the Spanish language. This system of education benefited largely the illustrados orthose who came from affluent Filipino families that could afford to send their childrento the limited number of secondary and tertiary schools (colegios) open to selectednon-Spaniards. Although it did not reach most Filipinos, by 1898, enrollment inschools at all levels was said to have exceeded 200,000 students. In short, mostnative Filipinos were denied of such right and only a few who served as acolytes inchurch and servants to the Spaniards were lucky enough to receive Spanish educationthrough the benevolence or forbearance of their masters.

Citing the Joint Congressional Committee on Education Report entitledImproving the Philippine Education System (1949), Elevazo and Elevazo (1995) pointout the underlying philosophical concerns of education during the Spanish period tobe: (1) the development of knowledge of the Christian faith and ethics in preparationfor the afterlife; (2) ability to read, write and count, and a command of fundamentaltools and knowledge; (3) training for allegiance to the colonial rule of Spain; (4)vocational skills in agriculture and trade; and (5) ability to sing and read musicprimarily to participate in religious activities and secondarily for leisure (p.14). Theoverarching goal of the Spaniards in the Philippines was thus the evangelization ofthe Filipino. Observably, some native Filipinos, who were converted into the Catholicfaith, practiced their new-found faith with their indigenous beliefs. Others, however,resisted everything Spaniard and fought for their liberation. They developed aphilosophy of education based on their indigenous and secular orientation.

The heroism of Jose Rizal and Andres Bonifacio reflects the two diverseconditions of Philippine education during the Spanish regime. Unlike Bonifacio whowas known for being a self-educated native or “Indio,” Rizal was educated in the twoprominent Spanish-run universities in the Philippines – Ateneo de Manila andUniversity of Sto. Tomas – and earned a medical degree in Spain. He hated theSpanish cruelty to the natives as shown in his novels and essays. However, he wantedonly justice under the rule of law of Spain, and went on to counsel against therevolution and refused to lend his name to it because he believed it was hopeless.On the other hand, in spite of his lack of formal education, Bonifacio led the mostsuccessful insurrection ever against Spain as he wanted nothing from the latter. Thesuccess of his rebellion was evidenced by the fact that it was dubbed as the “PhilippineRevolution.” Bonifacio dreamed of one thing for the Filipinos - sovereignty. He wrotethe Katipunan as the guiding document of the first truly Filipino government. Hedid not become the president of the first Philippine Republic as Aguinaldo wasvoted over him by the rich-dominated Tejeros convention, who believed that hislowly background made him unfit to lead the revolutionary government, and thiscountry. Worse, upper class Spanish-educated Aguinaldo pursued the will of theSpaniards and signed the death warrant of Bonifacio.

Some historians believe that the Katipunan must be proclaimed as the firstPhilippine Republic with Andres Bonifacio as the first president. Bonifacio firstintroduced the concept of the Philippine nation in Haring Bayang Katagalugan(“Sovereign Tagalog Nation”) which was replaced by Aguinaldo’s concept of Filipinas



after his election as President during the Tejeros convention on March 22, 1897(Guerrero, et al., 1998: 166-167). The Tagalog Republic under the Katipunanrevolutionary government (1896-1897) predated what is now known as the FirstPhilippine Republic. The term Tagalog, although historically used to refer to an ethnicgroup, their language, and script, is not restricted to the Tagalog regions of Luzon,hence, it is equally embracing as Aguinaldo’s concept of Filipinas consisting of Luzon,Visayas and Mindanao (comprising the modern Philippines). Guerrero writes thatBonifacio and the Katipunan already had an all-encompassing view of the Philippinenation as evidenced by the Kartilla which defines “Tagalog” as “all those born in thisarchipelago; therefore, though Visayan, Ilocano, Pampango, etc. they are all Tagalogs”(Guerrero, 1996: 3-12).

In the final analysis, only few Filipinos took advantage of the Spanisheducation system. The Spaniards deprived the native Indios like Bonifacio of theirrights to education as they put up an unconditional resistance or struggle to be free,or to enjoy freedom in a sovereign nation. The Spaniards were preoccupied withtheir colonization efforts through forced political subjugation and evangelization ofFilipinos to assuage their resistance and rebelliousness against the collection of forcedtributes and the enforcement of forced labor, and to ward off protracted rebellionsacross the country (ibid., p. 18). Thus, educating the natives was their least priority,or not at all.

The First Philippine Republic. The revolution period towards the end ofthe 19th century was a momentous event in Philippine education history. It endedthe long period of oppression and gave birth to the enjoyment of civil and politicalrights and the right to education. Article XXII of the Provisional Constitution writtenin Biak-na-Bato contained, among others, a provision on education: “Religious liberty,the right to association, the freedom of education, the freedom of the press, as wellas freedom in the exercise of professions, arts, trades and industries are established.”The Malolos Constitution, which superseded the Provisional Constitution of Biak-na-Bato, clearly mandated the separation of Church and State, and decreed a systemof free and compulsory elementary education. This officially declared the FirstPhilippine Republic, which was formally established with the proclamation of theMalolos Constitution on Jan. 21, 1899. The First Republic endured until the captureand surrender of Aguinaldo to American forces on March 23, 1901, after which itwas effectively dissolved.

The Revolutionary Government pursued remarkable efforts to promote theeducation of the people after its establishment on June 12, 1898. It created a positionof Director of Public Instruction under the Secretario de Fomento, to handle educationmatters. The schools maintained by Spain for more than three centuries were closedfor the time being but were reopened on August 29, 1898. The Burgos Institute inMalolos, the Military Academy of Malolos (now the Philippine Military Academy),and the Literary University of the Philippines were established. In spite of the policychanges, the First Philippine Republic was left with no choice but to start with someelements of the existing educational institutions under Spanish colonial rule,

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particularly in higher education. Nonetheless, it excluded the teaching of religion atall levels and focused on the development of Filipino citizenship and nationalism.The philosophy of education during the revolutionary period was centered onfreedom and “love of country within the context of love of God” (ibid., p.22). ThisFilipino value was the dominant theme of Andres Bonifacio’s “Duties of the Sons ofthe People” and Apolinario Mabini’s “Decalogue.”

The First Philippine Republic was unfortunately short-lived, thus its philosophyon education failed “to reach full flowering and fruition” (ibid., p. 23). Nevertheless,it gave opportunities for those Filipino revolutionary heroes to espouse, albeit for ashort time, the true aspirations, visions and values of Filipino education. Theserevolutionary heroes struggled for a government ran by Filipinos and protective ofthe interest and welfare of the Filipino people and the creation of a sovereign republic.Their essence of love of country was “so strong as to require even the supremesacrifice of one’s life” (ibid.). They wanted a sovereign country founded on its richcultural heritage, values and tradition. They envisioned an indigenous right- andculture-based educational system that every Filipino could be proud of.

American Colonization Period. The Treaty of Paris on December 10,1898 marked the beginning of another colonial regime in the Philippines. Concludedwithout participation of Filipino leaders, it ended the Spanish-American war andstarted a new era of another colonial master. It also put a price tag for the Filipinopeople as the Philippines was ceded to the United States by Spain for the paltry sumof US$20 million. Like any other transaction, one who pays the price expectssomething in return plus profits. In the process, the Americans disregarded thepolitical rights of the Filipino people in this anomalous transaction as they did noteven ask for their consent and took it upon themselves to decide the fate of theFilipinos. Aware of the Philippine struggle and the Filipinos’ hard-won freedom fromSpain, the Americans did not allow us to savor this new found freedom, but made usbelieve that they came here to “civilize” us. They forced upon us parity rightsagreements all in their favor, while we were swamped with propaganda and hypocrisyabout their democratic ideals, particularly freedom, self-determination and self-governance. Some call it imperialism; others dub it as plain and simple greed.

The US-sponsored military government in the Philippines used the FirstPhilippine Commission as its instrumentality to impose their form of colonialgovernance in the country. It promulgated legal policies affecting all aspects of ourlives, including education. With the mandate of then President Willian McKinley,the Commission was instructed to institute an adequate secularized and free publicschool system during the first decade of American rule, “to enable the people tobecome a “civilized” community” (ibid., p. 25). The free primary instruction carriedwith it the teaching of the duties of citizenship, simple livelihood and avocation asmandated by the Taft Commission per instructions of President McKinley. Chaplainsand non-commissioned officers were assigned to teach in the country using Englishas the medium of instruction.



The American period was known for the establishment of a highly centralizedpublic school system by virtue of Act No. 74, which was enacted by the PhilippineCommission in 1901. Regarded as the first educational law under the Americanregime, and known as the first “organic school law” of the Philippines, it resurrectedthe public primary school system. The Americans patterned the Philippine publicschool system after their system of education. The Philippine public schools usedAmerican textbooks and reading materials to teach subjects in reading, writing,arithmetic, language, gardening, domestic science, American history, and Philippinehistory. There were very limited technical education courses for the Filipinos as theAmericans did not want them to be educated beyond what they envisioned them tobe. Vocational education focused on “gardening, carpentry, sewing, lace making, andalmost everything that would ‘civilize’ the ‘uncivilized’ Filipino” (p. 27). In short, the“Americans took the responsibility of thinking for the Philippines, as did theSpaniards, and of charting their educational future” (p. 29).

The implementation of Act No. 74 caused a heavy shortage of teachers in thecountry. Because of this, the Philippine Commission authorized the Secretary ofPublic Instruction to bring to the Philippines more than 1600 teachers from theUnited States, popularly called the Thomasites, between 1901 and 1902. Theseteachers were dispersed throughout the islands to establish barangay schools andteach the people. The Commission activated the Philippine Normal School (now thePhilippine Normal University) to train Filipino teachers for the public schools toarrest the problem. In line with the system of governance, the Philippine Commissionmandated the provincial governments to support the high school system and createdspecial educational institutions, schools of arts and trades, agricultural schools, andcommerce and marine institutes in 1902. In 1908, the Philippine Legislature approvedAct No. 1870 which created the University of the Philippines. It enacted Act No.2706, otherwise known as the Private School Law. It also passed the ReorganizationAct of 1916 providing for the Filipinization of all department secretaries except theSecretary of Public Instruction.

After two-and-a-half decades of American colonial government, the MonroeSurvey Commission was created in 1925 to evaluate the Philippine educationalsystem. The Monroe Commission found it deficient in the area of self-governance.Because of this, the American Undersecretary of Public Instruction formulated thepolicy that in “so far as the state is concerned, the primary aim of education is toprepare the individual to exercise the right of suffrage intelligently and to performthe duties of citizenship fully and honestly” (p.30). With this, the public educationsystem focused its philosophy on the teaching of the rudiments of self-government,and the use of English as a common language. The Americans did not really want usto be free early on. All their efforts displayed their lack of sincerity in helping us tobecome a fully self-governing nation. Indeed, it was already late (only after it hadbeen forced upon us for two decades) when they realized that they could not imposetheir system of education, as it would (as it did) undermine our cherished culture,values and aspirations. Sadly, the Americans failed to consider these important aspectsof our humanity.

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Nevertheless, the concept of American education may be given credit foropening opportunities for the wealthy few who were given the privilege to study inthe United States and learn the true essence of freedom and democracy. The massesof Filipinos who availed of their public school system in the country waited for solong before they were finally taught the true ideals of democracy, principles of justiceand freedom, and the tenets of people participation in decision-making. The greatestessentials of the American education system were not transported in the Philippinesduring the American colonial period; if ever they were, they remained in the pagesof their textbooks where they belonged because they were never taught andimplemented.

Commonwealth Period. From 1935 to 1946, the Philippines was considereda commonwealth and this system of government or political designation of thePhilippines prevailed, although it was shortly interrupted during the Japaneseoccupation. Prior to 1935, the status of the Philippines was virtually undefined.Some called it an insular territory with non-commonwealth status. The history ofthe Philippine Commonwealth is similar to the Commonwealth of the NorthernMariana Islands (CNMI), a commonwealth in political union with the US. Thedifference is that the Northern Mariana Islands and the nearby island of Guam haveremained as US territories even up to the present, as they occupy a strategic regionof the western Pacific Ocean. Northern Mariana Islands, which is part of Micronesia,comprises the former Mariana Islands District of the Trust Territory of the PacificIslands. It consists of three main islands—Saipan, Tinian, and Rota—and severalsmall islands and atolls. It is located just north of Guam; Saipan lies about 125 milesnortheast of Guam, but southernmost Rota is less than 50 miles from Guam. TheNorthern Mariana Islands, together with Guam to the south, compose the MarianaIslands.

Historically, Spain began colonizing the said islands in 1668. Originally calledIslas de Ladrones (Islands of Thieves), the Spanish renamed them in 1688 in honor ofQueen Mariana of Spain. Spain sold the Marianas, as well as the Carolines andMarshalls, to Germany in 1899 to raise money after the Spanish-American War. In1914, during World War I, Japan claimed jurisdiction over all these islands afterentering the war on the side of the Allied Powers; it retained them officially under a1919 mandate of the League of Nations. The US gained control of the islands throughmilitary victories in 1944, and established a military government following WorldWar II. Thereafter, the islands were administered by the US as part of the UnitedNations Trust Territory of the Pacific Islands; thus, defense and foreign affairsremained the responsibility of the US. CNMI decided not to seek independence, butinstead negotiated for territorial status in early 1970s. A covenant to establish acommonwealth in political union with the U.S. was approved in 1975. A newgovernment and its constitution went into effect in 1978. Since then, CNMI hasbeen regarded as a commonwealth in political union with the US withoutrepresentation in the U.S. Senate, but it is represented in the US House ofRepresentatives by a delegate (beginning January 2009 for the CNMI), who mayvote in committee but not on the House floor.



On the other hand, the creation of the Philippine Commonwealth wasenvisioned under the Philippine Independence Act, popularly known as the Tydings-McDuffie Act. It provided for a ten-year transition period to independence, duringwhich the Commonwealth of the Philippines would be established. TheCommonwealth was officially inaugurated on November 15, 1935. It had its ownconstitution, which remained effective until 1973, and was self-governing, althoughforeign policy and military affairs remained under the responsibility of the UnitedStates and the passage of law by the legislature affecting immigration, foreign trade,and the currency system had to be approved by the United States president. At theoutset, the US did not really intend to make the Philippines its territory like CNMIand Guam because they wanted to control only selected parts of this country throughits military bases. Added to this was the resistance being put up by our leaders thenwho were against Americans.

Be that as it may, the 1935 Constitution provided the framework and philosophyfor public education system in the Philippines. Section 5, Article XIV provides that:

Section 5. All educational institutions shall be under the supervisionof and subject to regulation by the State. The Government shall establishand maintain a complete and adequate system of public education, andshall provide at least free public primary instruction, and citizenshiptraining to adult citizens. All schools shall aim to develop moral character,personal discipline, civic conscience, and vocational efficiency, and to teachthe duties of citizenship. Optional religious instruction shall be maintainedin the public schools as now authorized by law. Universities establishedby the State shall enjoy academic freedom. The State shall createscholarships in arts, science, and letters for specially giftedcitizens.(Underscoring supplied).

Considering the foregoing constitutional mandate, Manuel L. Quezon, theelected President of the Commonwealth, formulated a system of guiding principlesto serve as standards of behavior for the Filipino people, especially the youth. Heissued Executive Order No. 17, now known as the Quezon Code of Ethics, recitingthe foundational philosophy for the emerging system of Philippine education. Itcontains fundamental guidance on how to develop moral character, personal discipline,civic conscience, and the duties of citizenship. The first two principles therein areabout faith in Divine Providence and Love of Country. The basic legal guidelinesthat actually implemented the constitutional provision on education under the 1935Constitution were embodied in Commonwealth Act No. 586, which was enacted tosubstantially reform the public school system along the following principles:

(1) to simplify, shorten, and render more practical and economical boththe primary and intermediate courses of instruction so as to place thesame within the reach of the largest possible number of schoolchildren;

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(2) to afford every child of school age adequate facilities to commenceand complete at least the primary course of instruction;

(3) to give every child completing the primary course an adequate workingknowledge of reading and writing, the fundamentals of arithmetic,geography, Philippine history and government, and character and civictraining; and

(4) to insure that all children attending the elementary schools shallremain literate and become useful, upright, and patriotic citizens.

The Commonwealth period which lasted for about seven years after it wasinaugurated in 1935 was interrupted by the Japanese occupation. It thus wrote downan important milestone in the legal and philosophical history of Philippine educationbecause education during this period was made available equally to the rich andpoor, at least in principle.

Japanese Colonial Period. Japan invaded the Philippines in 1942. The war-time educational objectives and philosophy of the Japanese Imperial Forces werepronounced on February 17, 1942 by its Commander-in-Chief, thus:

(1) to make people understand the position of the Philippines as amember of the East Asia Co-Prosperity Sphere, the true meaning ofthe establishment of a New Order in the sphere and the share whichthe Philippines should take for the realization of the New Order, andthus to promote friendly relations between Japan and the Philippinesto the furthest extent;

(2) to eradicate the old idea of reliance upon the Western nations,especially the USA and Great Britain, and to foster a new Filipinoculture based on the self-consciousness of the people as Orientals;

(3) to endeavor to elevate the morals of the people, giving up theoveremphasis on materialism;

(4) To strive for the diffusion of the Japanese language in the Philippinesand to terminate the use of English in due course;

(5) to put an importance to the diffusion of elementary education and tothe promotion of vocational education; and

(6) to inspire the people with the spirit to love labor (Elevazo and Elevazo,1995: 39-41, citing Circular No. 1, s. 1942, Bureau of Public Instruction).

During this period, the Philippine Executive Commission established theCommission of Education, Health and Public Welfare, and schools were reopenedin June 1942. The Japanese military administration immediately conducted re-orientation and re-training of Filipino pre-war teachers for the attainment of theabove objectives. On October 14, 1943, the Japanese-sponsored Republic createdthe Ministry of Education. Under the Japanese regime, the teaching of Tagalog,Philippine History, and Character Education was reserved for Filipinos. Love forwork and dignity of labor was emphasized. On February 27, 1945, the Departmentof Instruction was made part of the Department of Public Instruction. The Japanese



colonial regime supported elementary education and promoted vocational education,notable of this were livelihood training in fish culture and duck raising. It tried toimmediately transform Philippine society through an educational system which waspolitically, economically, culturally and ideologically oriented toward theestablishment of the East Asia Co-Prosperity Sphere. Thus, its philosophy ofeducation was basically anti-American.

As a whole, during this period (1941-1945), the Filipinos were taught how tobe resilient in the face of adversities. While Filipino teachers were forced to teachwar ideology and a Japanese brand of morality against the West, we saw the fierceresistance of the people in the countryside against the cruelty of the Japanese. Withthe lessons learned in the previous wars, the efforts of the Japanese to re-educatethe Filipinos were confronted with contrived avoidance and circumvention in theprocess of implementation, if not actual physical combat in the countryside. TheJapanese did not actually make a remarkable dent to the already deeply embeddedWestern-imposed educational system in the Philippines.

The Philippine educational system during the colonial, revolutionary andcommonwealth periods was also tainted with colonialism. But it was not easy for thecolonizers to impose their systems of education as they were met with viciousresistance from the patriotic Filipinos. In the midst of adversity and war, educationbecome a catalyst of change as it brought the best in some Filipinos, who developedand implemented legal education policies and philosophy resembling the rich history,culture, values and tradition of the Filipino people.

Post-Liberation Philippine Education

Some authors limit the discussion of post-liberation period of education fromthe time the Philippines was liberated from Japan in 1945 to the pre-Martial Lawperiod (1945-1970). This part presents the state of the Philippine educational systemduring the Marcos regime. The succeeding discussions include the systems ofPhilippine education after World War until the end of the Marcos regime. The post-liberation Philippine educational system starts from the end of the four-year Japaneseoccupation or the termination of World War II and the restoration of the Philippineindependence on July 4, 1946, during which the dominant philosophy of Philippineeducation to foster faith in democracy as a way of life. President Manuel Roxas, atthe inauguration of the Third Philippine Republic on July 4, 1946, defined thisdirection of Philippine education pursuant to the mandate of the 1935 Constitution.Thereafter, Executive Order No. 94 was issued in 1947, which changed theDepartment of Instruction to the Department of Education. This period also sawthe creation of the Bureau of Public and Private Schools in charge of the regulationand supervision of public and private schools. It marked the beginning of a newdirection for the Philippine educational system as it was no longer boxed in, norrequired to follow the US model. However, the Western system of education wasalready practically transplanted in the country.

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One important piece of legislation during this period was R.A. No. 896,otherwise known as the Elementary Education Act of 1953. It made compulsory theenrollment of a child the next school year following his/her seventh birthday andthe requirement for him/her to remain in school until he completed elementaryeducation, subject to the same exceptions provided under Commonwealth Act No.586 and the said Act. It also restored Grade VII, provided that the pupils who werein Grade VI at the time of its implementation were no longer required to completethe seventh grade in order to be eligible for first year high school. Laws and policieson education were basically guided by Article XIV, Section 5 of the 1935Constitution, thus: “All schools shall aim to develop moral character, personaldiscipline, civic conscience, and vocational efficiency, and to teach the duties ofcitizenship.” This constitutional proviso served as the essential principle of educationduring the Philippine Commonwealth.

Notably, the right to education has been universally recognized since theUniversal Declaration of Human Rights in 1948. Article 26 of the Declarationproclaims that: ‘Everyone has the right to education. Education shall be free, at leastin the elementary and fundamental stages. Elementary education shall becompulsory…education shall be directed to the full development of human personalityand to the strengthening of respect for human rights and fundamental freedoms. Itshall promote understanding, tolerance and friendship among racial or religiousgroups…’ This right has since been enshrined in various international conventions,regional treatises, national constitutions, statutes, and development plans of variouscountries of the world.

For instance, recognizing the right of education as a basic human right, Article2 of the first Protocol to the European Convention on Human Rights (1952) obligesall signatory parties to guarantee the right to education. The United Nations’International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)guarantees this right under its Article 13. The Convention on the Elimination of AllForms Of Discrimination Against Women (CEDAW, 1979) and more recently, theConvention On The Rights of The Child (CRC, 1989) also include the right toeducation. The Philippines is a signatory to the foregoing United Nations’ conventions.However, the right to basic education has been formally recognized as a human rightin the Philippines since 1935, with the enactment of the 1935 Constitution. Theright to basic education as a human right means that basic education is somethingthat the Filipino people are entitled to, which they can claim without having to payfor its access and the government is obliged to provide it for free. This constitutionalpolicy has been pursued from post-liberation to the present.

For clarity and guidance, the Department of Education (DepEd) summarizesthe history and legal bases of the Philippine basic educational system starting fromthe Spanish colonial period to the present. Considering that the powers and functionsof DepEd over vocational and technical education and training (TVET) and highereducation (HE) ceased only in 1994, the table below applies to the legal history ofpost-secondary education (TVET and HE) from 1863 to 1994.



YEAR OFFICIAL NAME OFFICIAL LEGAL BASES

OF DECS TITULAR HEAD

1863 Superior Commission Chairman Educationalof Primary Instruction Decree of 1863

1901-1916 Department of Public Instruction General Act. No. 74 of theSuperintendent Philippine Commission,

Jan. 21, 1901

1916-1942 Department of Public Instruction Secretary Organic Act Law of 1916 (Jones Law)

1942-1944 Department of Education, Commissioner Renamed by the JapaneseHealth and Public Welfare Executive Commission,

June 11, 1942

1944 Department of Education, Minister Renamed by JapaneseHealth and Public Welfare Sponsored Philippine

Republic

1944 Department of Public Instruction Secretary Renamed by JapaneseSponsored Philippine

Republic

1945 - 1946 Department of Public Instruction Secretary Renamed by theand Information Commonwealth

Government

1946 - 1947 Department of Instruction Secretary Renamed by theCommonwealth

Government

1947 - 1975 Department of Education Secretary E.O. No. 94 October 1947(Reorganization Act of 1947)

1975 - 1978 Department of Education Secretary Proc. No. 1081,and Culture September 24, 1972

1978 - 1984 Ministry of Education Minister P.D. No. 1397,and Culture June 2, 1978

1984 - 1986 Ministry of Education, Minister Education Act of 1982Culture and Sports

1987 - 1994 Department of Education, Secretary E.O. No. 117.Culture and Sports January 30, 1987

1994 - 2001 Department of Education, Secretary RA 7722 and RA 7796,Culture and Sports 1994 Trifocalization

of Education Management

2001 Department of Education Secretary RA 9155, August 2001– present (Governance of Basic

Education Act)

Source: http://www.deped.gov.ph/about_deped/history.asp, accessed 4/30/10.

As the basic and fundamental law of the Philippine education, the 1935Constitution, which was promulgated after the inauguration of the PhilippineCommonwealth, was re-activated after the Japanese occupation. It governed oureducational system for more than three decades. It was replaced by the 1973Constitution as an offshoot of the declaration of Martial Law. President Marcosintroduced a model of education based on the vision of a new society. He believedthat the 1935 Constitution had “vestiges of colonialism” and was already irrelevantto the new society. Contrary to the colonial nature of the previous constitution, the1973 Constitution was a product of the dictatorial rule.

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As a background, Proclamation No. 1081 was issued in 1972 in which theDepartment of Education became the Department of Education and Culture. OnSeptember 24 1972, by virtue of P.D. No 1, the Department of Education, Cultureand Sports (DECS) was decentralized with decision-making powers shared amongthirteen regional offices. The 1973 Constitution, which was ratified on January 171973, set out the three fundamental aims of education in the Philippines: (a) tofoster love of country; (b) to teach the duties of citizenship; and (c) to develop moralcharacter, self discipline, and scientific, technological and vocational efficiency (Tulio,2008: 120). In 1978, by virtue of PD No 1397, the Department of Education andCulture became the Ministry of Education and Culture.

Article XV, Section 8 of the 1973 Constitution defined and set theconstitutional framework of the Philippine education system after martial rule, thus:

Section 8. (1) All educational institutions shall be under the supervisionof and subject to regulation by the State. The State shall establish andmaintain a complete, adequate, and integrated system of educationrelevant to goals of national development.

(2) All institutions of higher learning shall enjoy academic freedom.

(3) The study of the Constitution shall be part of the curricula in allschools.

(4) All educational institutions shall aim to inculcate love of country,teach the duties of citizenship, and develop moral character, personaldiscipline, and scientific, technological, and vocational efficiency.

(5) The State shall maintain a system of free public elementaryeducation and, in areas where finances permit, establish and maintain asystem of free public education at least up to the secondary level.

(6) The State shall provide citizenship and vocational training to adultcitizens and out-of-school youth, and create and maintain scholarshipsfor poor and deserving students.

(7) Educational institutions, other than those established by religiousorders, mission boards, and charitable organizations, shall be owned solelyby citizens of the Philippines, or corporations or associations sixty percentum of the capital of which is owned by such citizens. The control andadministration of educational institutions shall be vested in citizens ofthe Philippines. No education institution shall be established exclusivelyfor aliens, and no group of aliens shall comprise more than one-third ofthe enrollment of any school. The provisions of this subsection shall notapply to schools established for foreign diplomatic personnel and their



dependents and, unless otherwise provided by law, for other foreigntemporary resident.

(8) At the option expressed in writing by the parents or guardians, andwithout cost to them and the government, religion shall be taught totheir children or wards in public elementary and high schools as may beprovided by law.

In line with the said constitutional proviso, B.P. Blg. 232, also known as theEducation Act of 1982, instituted an integrated system of education covering bothformal and non-formal education at all levels. Section 29 of the Act mandated toupgrade education institutions’ standards to achieve quality education, throughvoluntary accreditation for schools, colleges, and universities. The voluntaryaccreditation of schools became very controversial when the CHED established theInstitutional Quality Assurance Monitoring and Evaluation (IQAME) in 2005 forregulation of the existing accreditations of private schools. Because of this, formerPresident Arroyo issued E.O. No. 705, on January 2, 2008, as amended by E.O. No.705, which was issued on April 10, 2008. E.O. No. 705 subjected private schools notaccredited by the Philippine Accrediting Association of Schools, Colleges andUniversities (PAASCU) to the Institutional Quality Assurance Monitoring andEvaluation (IQAME) process. Sec. 1 of E.O. No. 705 was amended as follows:

Section 1. Higher education institutions with programs accredited by the fiveexisting accrediting agencies, namely: the Philippine Accrediting Association of Schools,Colleges and Universities (PAASCU), the Philippine Association of Colleges andUniversities – Commission on Accreditation (PACU-COA), the Association of ChristianSchools, Colleges and Universities – Accrediting Agency (ACSCU-AA), the AccreditingAgency of Chartered Colleges and Universities (AACUP), and the Association ofLocal Colleges and Universities – Commission on Audit (ALCU-COA), shall not besubjected by the Commission on Higher Education (CHED) under the process ofInstitutional Quality Assurance Monitoring and Evaluation (IQUAME), providedthat these accrediting agencies conform with a set of common standards formulated bya Coordinating Council on Accreditation (CCA), hereafter to be established by theCHED.”

The foregoing executive issuances are the very legal bases of CHED’s regulationof the accreditation of private schools. President Arroyo issued said executiveissuances pursuant to her powers under the Constitution and Executive Order No.292 (the Administrative Code of 1987). The president thus validly delegated herpower to CHED by directing it to formulate common policies and standards forexisting accrediting agencies to enhance and improve the quality of education in thecountry.

However, Fr. Joaquin G. Bernas, S.J believes otherwise, contending that“accreditation shall be ‘voluntary in nature’.” (Sounding Board: CHED attempts‘martial law over school accreditation, PDI, Dec. 209, 2009). He said that B.P. Blg.

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232 (Education Act of 1982) and its implementing rules and Republic Act No. 7722(CHED Act) did not give CHED the power to issue rules and regulations onaccreditation. To make rules and regulations issued by administrative agencies valid,he enumerated three conditions that must be satisfied: “(1) there is a law delegatingthe rule-making power; (2) the delegating law contains standards for the executiveagency to follow; (3) the rules stay within the standards set by the delegating law.”

The CHED has been subsidizing the accrediting agencies in the accreditationof private schools, which have to pay certain fees to the accrediting bodies for theiraccreditation in accordance with law. With this and the said executive order mandatingthe accrediting agencies to conform with a set of common standards formulated bythe Coordinating Council on Accreditation (CCA) of CHED, it is just proper aspart of the sovereign function of the CHED to regulate higher education, includingits accreditation, notwithstanding the fact that the law (B.P. Blg. 232) states thataccreditation is voluntary, thus:

Section 29. Voluntary Accreditation - The Ministry shall encourageprograms of voluntary accreditation for institution(s) which desire to meetstandards of quality over and above (the) minimum required for Staterecognition.

Education is not a business or industry to be free of government restriction orregulation. It is not an economic activity that follows the laissez-faire theory. It isimpressed with public interest. With the dismal performance of some accreditedschools in various licensure examinations on top of the poor performance ofaccrediting agencies in the accreditation process as they have accredited only a fewschools thus far, the government through CHED cannot close its eyes as it ismandated to ensure quality education. These are among the reasons for the necessityof regulating the accreditation of private schools. The CHED also wants to see to itthat the millions of pesos allocated for those accrediting agencies are properly spentand accounted for. The authority to regulate the accrediting agencies is well withinits sovereign function to fulfill its mandate to provide quality education for all.

No less than the Supreme Court ruled that the administration and regulationof education is a sovereign function of the government to be exercised for the benefitof the public. Citing Laurel v. Desierto (430 Phil. 658; G.R. No. 145368, April 12,2002), it defined public office as “the right, authority and duty, created and conferredby law, by which, for a given period, either fixed by law or enduring at the pleasureof the creating power, an individual is invested with some portion of the sovereignfunctions of the government, to be exercised by him for the benefit of the public”(Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008). It also said that“Delegation of sovereign functions is essential in public office.” It ruled in the Seranacase that:

The administration of the UP is a sovereign function in line withArticle XIV of the Constitution. UP performs a legitimate governmental



function by providing advanced instruction in literature, philosophy, thesciences, and arts, and giving professional and technical training.Moreover, UP is maintained by the Government and it declares nodividends and is not a corporation created for profit.

Sections 16 and 17 thereof upgraded the obligations and qualifications requiredfor teachers and administrators. Section 41 provided for government financialassistance to private schools. The Act also created the Ministry of Education, Cultureand Sports. Although the law has some provisions showing biases against the privatesector as the government’s strict control and supervision over schools affect primarilythe private and not necessarily the public school system, it is a good law as it mandatesthe State to promote and maintain (1) the right of every individual to relevant qualityeducation, regardless of sex, age, creed, socio-economic status, physical and mentalconditions, racial or ethnic origin, political or other affiliation, (2) the equality ofaccess to education as well as the enjoyment of the benefits of education by all itscitizens, and (3) the right of the nation’s cultural communities in the exercise of theirright to develop themselves within the context of their cultures, customs, traditions,interest and belief, and recognizes education as an instrument for their maximumparticipation in national development and in ensuring their involvement in achievingnational unity (Sec. 3).

Although the Philippine education system under the Marcos regime wassubjected to intense opposition and protests from various sectors, particularly whenit introduced the ideology for the new society in the basic education level throughtextbooks and other instructional materials, it produced the Education Act of 1982,a landmark piece of legislation that provided for the development of education inthe country. President Marcos was also known for the passage of P.D. No. 1006,declaring teachers as professionals and teaching as a profession. This decree requiredall teachers to pass the Professional Board Examination for Teachers (PBET) beforethey were allowed to teach and provided for the creation of National Board forTeachers tasked to prepare and administer the PBET. Included in this was the passageof the Magna Carta for Public School Teachers that decreed the improvement of thesocio-economic welfare of educators and their protection.

In spite of this, the Filipino people found the imposition of the ideology of thenew society into the educational system dictatorial and oppressive and they dramatizedtheir protest on the streets leading to the 1986 EDSA revolution. With this, theideology of the new society which President Marcos envisioned for the Filipino peopleto become responsible, productive and patriotic citizenry came to an end.

Post-EDSA Educational System

This period covers the period from the time President Corazon C. Aquinoascended to power up to the present. After President Aquino assumed the presidency,the 1987 Constitution was ratified on 2 February 1987. Section 3, Article XIV of

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the 1987 Constitution contains the ten elemental aims of education in the Philippines.Prior thereto, President Aquino issued Executive Order No. 117, reorganizing theMinistry of Education, Culture and Sports, in the process renaming the Bureau ofSports Development as the Bureau of Physical Education and School Sports, andthe Bureau of Continuing Education as the Bureau of Non-Formal Education. Thestructure of DECS as embodied in EO No. 117 remained practically unchanged until1994.

Evidently, education plays a vital role to protect human rights, promote humandignity, and attain human progress. It is also an important instrument of socio-economic growth and sustainable development. This is precisely the main concernof Philippine education under the 1987 Constitution. Its focus is on the learner asthe means and the end of development. It aims to address not only individual needsbut also community needs. The duties of all educational institutions in relation tothis mandate are clearly stated in Art XI, Sec. 3 (par. 2) of the 1987 Constitution:“They shall inculcate patriotism and nationalism, foster love of humanity, respectfor human rights, appreciation of the role of national heroes in the historicaldevelopment of the country, teach the rights and duties of citizenship, strengthenethical and spiritual values, develop moral character and personal discipline,encourage critical and creative thinking, broaden scientific and technologicalknowledge, and promote vocational efficiency.” The complementary roles of publicand private educational institutions are thus recognized in the pursuit of the aboveobjectives.

The 1987 Constitution also envisions education as a tool for attaining thegoals of social justice, unity, freedom, and prosperity. It wants to make education atool of development as evidenced by its various provisions restating its commitmentto national development. Art. II, Section 17 of the 1987 Constitution states that“The State shall give priority to education, science and technology, arts, culture, andsports to foster patriotism and nationalism, accelerate social progress, and promotetotal human liberation and development. It seeks to make education a tool of equalityand social justice making it free and accessible.” This shows that the 1987 Constitutionregards education as a tool to achieve its aspiration to create a society of responsible,productive, self-fulfilling and patriotic citizens. It also intends to use education as aninstrument of peace through the equalization of the socio-economic forces and theprevention of social division among the people.

In fact, free public education is an attempt to narrow the gap between the richand the poor. It has been enhanced with the enactment of Republic Act No. 6655 on26 May 1988, providing for the Free Public Secondary Education Act of 1988. Itspecifically mandated free public secondary education commencing in the schoolyear 1988-1989. It was followed by the passage of Republic Act No. 7323 on 03February 1992, which provided that students aged 15 to 25 may be employed duringsummer or Christmas vacation with a salary not lower than the minimum wage.Sixty percent (60%) of the wage is to be paid by the employer and 40% by thegovernment. The government has implemented the trifocal system of education with



the firm belief that it will improve universal access to quality education and the poorpublic governance in the Philippine educational system.

The trifocal system of education in the Philippines had its impetus on theCongressional Commission on Education (EDCOM) dated December 28, 1991,entitled “Making Philippine Education Work: An Agenda for Reform,” specificallyrecommending the division of DECS into three agencies because of its findings onthe declining state of the Philippine education system brought about by poor publicgovernance, among other reasons. It found out that the quality of Philippine educationis declining continuously as evidenced by the following observations:

(1) Our elementary and high schools are failing to teach the competencethe average citizen needs to become responsible, productive and self-fulfilling;

(2) Colleges and technical/vocational schools are not producing themanpower we need to develop our economy; and

(3) Graduate education is mediocre. It does not generate the research-based knowledge we need to create more jobs and to raise the value ofproduction.

According to the EDCOM Report, the two main reasons for the decline ofPhilippine education are (1) that we are not simply investing enough in our educationalsystem, and (2) that our education establishments are poorly managed. The Philippineswas then beset with restraining trends such as low performance of students, shortinvestment in education, lack of policy direction in education, poor public and privateeducation governance, etc. In line with this, the trifocal system of education was putin place through various legislations and policies.

First, on May 18, 1994, Congress passed Republic Act No. 7722, the HigherEducation Act of 1994, creating the Commission on Higher Education (CHED),which assumed the functions of the Bureau of Higher Education and the supervisionof tertiary degree programs. Second, on August 25, 1994, Congress passed RepublicAct No. 7796, the Technical Education and Skills Development Act of 1994, whichcreated the Technical Education and Skills Development Authority (TESDA), whichabsorbed the Bureau of Technical-Vocational Education plus the National Manpowerand Youth Council. TESDA supervises non-degree technical-vocational programs.DECS retained responsibility for all elementary and secondary education. Third, inAugust 2001, Congress passed Republic Act No. 9155, otherwise called theGovernance of Basic Education Act, which renamed the Department of Education,Culture and Sports (DECS) as the Department of Education (DepEd) and redefinedthe role of field offices (regional offices, division offices, district offices, and schools).

RA 9155 provides the overall framework for (1) school head empowerment bystrengthening their leadership roles and (2) school-based management within thecontext of transparency and local accountability. The goal of basic education is toprovide the school-age population and young adults with skills, knowledge, and values

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to become caring, self-reliant, productive and patriotic citizens. It redefines theroles of field offices (regional, division, district and schools). It also affirms free andcompulsory education for children aged 7 to 12 years old, free but not compulsoryfor children aged 13 to 16 years old.

Thus, the Philippine education system has been trifocalized since 1994,with the DECS, TESDA and CHED respectively administering the basiceducation, technical and vocational education and training (TVET), and highereducation (HE).

Challenges and Prospects

The Philippines has been implementing a trifocal system of education forabout two decades now. This is the right time to re-visit this system to correct itsflaws because of the fact that it has not adequately addressed the issues and concernsof the Philippine education since its inception. The Philippines is now “off-track”with respect to its education commitments under the UN Millennium Declaration.Its goals to promote quality and excellence, to improve equal access to education,and to make human resource globally competitive remain to be seen. Evidently, thetrifocal system of education has systematically failed to provide students with thenecessary competence, skills, and preparation from basic education to post-secondaryeducation. With this system, the government thus fails to achieve its mandate tomake quality education accessible to all.

The foundation of post-secondary education is basic education. We can onlyhave quality education when we have good basic education. For this reason, CHEDChairperson Emmanuel Y. Angeles identified some pressing issues and concerns ineducation and proposed an action plan for the Philippine main education highway.In his paper presented during the Congressional Sub-Committee Budget Hearingheld on September 22, 2008, at the Andaya Hall, South Wing, Batasan Complex,entitled “Higher Education for Global Competitiveness: Towards the New HigherEducation Highway,” Chairman Angeles presented the following urgent issues andconcerns affecting the Philippine educational system: (1) preparation for college work,(2) cohort survival rate, (3) performance in the licensure examinations, (4)accreditation, (5) faculty qualifications, (6) mismatch, (7) access and equity, and (8)government investment in education. He provided the following information in hispaper:

First reason why our educational system has not achieved what itmust is the length of basic education, which is only ten years compared tothe 12-year international standard; other 9 countries in ASEAN regionhave at least 12 years of basic education. The Philippines is thus the onlycountry in the ASEAN region that has a 10-year basic education. Thiswill surely affect our professionals for it would be very difficult for themto find jobs abroad because of the lacking required number of years ineducation. Chairman Angeles thus suggested that we have “to devote the



first two years of college in augmenting the inadequate preparation ofthe high school graduates for college work.”

Second is the alarming drop-out rate. Statistics show that only 66out of 100 students who enter first grade will finish Grade 6, only 58 ofthis 66 will continue with high school; 43 of this 58 who enter high schoolwill finish high school; and only 14 of 43 high school graduates willgraduate in college. Chairman Angeles saw the urgent need for “bridgingthe gap in the pupils’ preparedness for college work” and “ensuringacceptability of our professional graduates in the international/regionalmarkets.”

Third is the poor performance of college graduates in the licensureexaminations. Data for the year 2007 show that the passing rate of studentsin the licensure examinations is only 38.72%. Chairman Angeles notedthat only the Science discipline cluster has more than 50% cut-off,specifically 53% passing rate. Sadly, teacher education has a passing rateof only 28.28%. It means that only 28 out of 100 graduates of teachereducation passed the 2007 licensure examinations for teachers.

Fourth is the dismal state of accreditation in the country. At present,there are about 1,726 higher education institutions. Of this, 203 (12%)are public higher education institutions (PubHEIs) and 1,523 (88%) areprivate higher education institutions (PriHEIS). Of the 203 PubHEIs,110 are state universities and colleges, 77 are local universities and colleges,and 16 are other government schools. Of the 1,523 PriHEIs, 1,262 arenonsectarian and 261 are sectarian. Again, 2007 data show that PubHEIshave 877,712 students; while PriHEIs have 1,687,822 students,respectively comprising 34% and 66% of 2,565,534 students enrolled forthe year. Chairman Angeles observed that “only 388 HEIs have achievedstandards over the minimum requirements of CHED and the rest – morethan 1,300 (81%) are either just complying with the minimum standardsor have not bothered to get their programs accredited.”

Fifth is the lack of qualified faculty for higher education programs.The minimum requirement for higher education faculty is at a leastmaster’s degree. CHED data show that for AY 2007-2008, only 9.65% ofHEIs faculty have doctoral degrees and 32.33% have master’s degrees.Statistics for the previous academic years are almost the same, rangingfrom 9% to 10% (with PhD) and 31% to 34% (with MA/S). This demandsnothing more than a comprehensive faculty development program forHEIs.

Sixth is the mismatch between education and manpower requirementsof the country. HEIs are producing more than 147,000 graduates everyyear. However, most of them cannot find jobs within three years after

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graduation because their competence and skills do not match the industries’manpower requirements. Chairman Angeles noted that “wanting is thecommunication skills needed in the business processing and outsourcing(BPO) industry.” He also said that “the graduates’ proficiency in Englishand Math as well as skills in the use/application of the latest technologiesare quite inadequate, if not totally lacking.”

Seventh is access and equity in education. Education is alwaysaccessible for the rich, and not for the poor. Thus, when access toeducation is unfair, equity need not be overemphasized. Poverty has beena hindrance for most people to have access to quality education. For thisreason, Chairman Angeles requested from Congress an additional budgetto assist more poor and deserving students and improve access to qualityeducation through scholarship grants and other forms of financialassistance.

Eighth and last is the inadequate government investment in education.Compared with other Asian neighbors, the Philippines is lagging behindin terms of spending in education vis-à-vis the percentage of Gross DomesticProduct (GDP). The total education budget’s share under the GeneralAppropriations Act has been declining (19% in 1999 and a little over 11%in 2008 (See Philippine Daily Inquirer (PDI), 1/30/2010). Citing Wallacereports, the PDI also reported that “Our country’s Education budget isonly between 2 percent to 2.5 percent of the country’s GDP, lower thanthe 4 percent to 5 percent recommended by UNESCO; Major East Asianeconomies allot 5 percent to 6 percent. The Philippines spends the leastin educating its kids ($318 per child vs. Thailand’s $1,048)” (id.). The bulkof government budget to education goes to basic education (more thanP150 billion).

On top of this, the 2010 Education for All report states that “Educationindicators for the Philippines are below what might be expected for a country at itsincome level and that extreme economic inequalities fuel education inequalities bypushing many children out of school and into employment.” With those alarmingissues and concerns, it is time for the government to take decisive actions. The focusof the government to allocate more funds to TESDA, with more than P3M budgetcompared to CHED budget of about P1.5M (P1,587,096,000.00 for FY 2008, to beexact) may be misplaced. We cannot be a country of voc-tech people because we needto give opportunity for these people to improve their competence and skills andadvance their career. We need to make up for the two-year deficit in basic education.And we need to harmonize our policies in post-secondary education to make iteffective, cost-efficient and sustainable.

It is true that it is very expensive for the government to add two more yearsfor Philippine basic education to make it at par with the 12-year internationalstandard. This issue has to be addressed in the post-secondary education, if not in



the basic education sector. The 2-year deficiency in basic education can be correctedby adjusting the post-secondary education to prepare high school graduates for collegework. Specifically, one suggestion is to add another two years as preparatory coursefor college education, also called the pre-college bridging program. The public willsurely oppose this because this means additional expenses for them, and more,suspect that this is another scheme for private education institutions to profit more.We must be reminded that education teaches us that change is inevitable. In theprocess, it calls for critical evaluation and skeptical scrutiny of any change in educationpolicy.

CHED Chairman Angeles proposed a multi-track education system to makeup for the 2-year deficit in basic education. This system will require the studentsgraduating from high school to take aptitude tests to serve as basis for theirclassification into two groups: (1) those who will go to the pre-college or technical-vocational education and training (TVET) track; and (2) those who will go direct tothe college/university track (HE track). This setup needs a well-developed and credibletesting and evaluation to effectively determine the competence, skills andpreparedness of high school graduates for admission in either the TVET or HEtract.

Be that as it may, Philippine post-secondary education must address the needsof the industry without depriving our people the opportunity to further theirprofessional education. The above issues and concerns are more than enough forour education policy-makers and legislators to review the Philippine educationalsystem and develop a more responsive, effective, cost-efficient and sustainable system.In basic education, the DepEd can ensure the continuity and sustainability ofelementary and secondary education in terms of programs and policies. The post-secondary education demands a similar setup to harmonize and make post-secondaryeducation globally competitive, thus suggesting the merging of TESDA with CHEDto form one higher education department. CHED is too small (in terms of manpowerand resources) for too many clientele (students, institutions, faculty, etc.); whileTESDA is too big for its limited clientele. The proposed system will reducebureaucratic red-tape, save money, and ensure the continuity, efficiency andsustainability of post-secondary education.

In the final analysis, with the lessons learned from the trifocal system ofeducation, this is the time to correct it to promote quality and excellence, and improveaccess to education, and address the manpower needs of the country in a moreeffective, cost-efficient and sustainable manner. This can be done by instituting adual system of education, with DepEd to maintain its supervision on basic educationconsisting of two stages, i.e., elementary education and secondary education, and ahigher education department to assume jurisdiction over post-secondary educationconsisting of two tracks, i.e., TVET tract and HE track. This proposed system ofeducation could ensure the successful completion of education from basic to highereducation, enabling every citizen to get what they truly deserve – accessible, affordableand acceptable quality education.

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References

Angeles, Emmanuel Y. Higher Education for Global Competitiveness: Towards theNew Higher Education Highway. Quezon City: Commission on Higher Education, Officeof the President, 2008.

CHED Action Plan 2009-2010 on the Philippine Main Education Highway.Quezon City: Commission on Higher Education, Office of the President, 2009

De Belen, Rustico T. Laws on Indigenous Peoples: Implications to

Peace Process. Unpublished Dissertation, Bicol Universisty Graduate School, 2003.

Elevazo, Aurelio O. and Elevazo, Rosita A. Philosophy of Philippine

Education. Mandaluyong City: National Book Store, 1995.

Guerrero, Milagros; Encarnacion, Emmanuel; and Villegas, Ramon. Andres

Bonifacio and the 1896 Revolution. Sulyap Kultura: National Commission forCulture and the Arts, 1996.

Guerrero, Milagros and Schumacher, S.J., John. Reform and Revolution,

Kasaysayan: The History of the Filipino People. Asia Publishing CompanyLimited, 1998.

Jocano, F Landa. Filipino Prehistory: Rediscovering the Precolonial

Heritage. Manila: Punlad Research House, Inc., 1998.

Scott, William Henry (1). Prehispanic Source Materials for the Study of

Philippine History. Manila: University of Santo Tomas Press, 1968.

(2).Barangay, Sixteenth-Century Philippine Culture and Society. Quezon City:Ateneo de Manila University Press, 1994. 4th printing, 1999.

Tiongson, Jaime F. Laguna Copperplate Inscription: A NewInterpretation Using Early Tagalog Dictionaries, Paper presented at the 8thInternational Conference on Philippines studies, July 23-2006, 2008, PSSC, QuezonCity.

Tulio, Doris D. Foundations of Education 2. Mandaluyong City: NationalBook Store, 2008.

� �

MA. MILAGROS N. FERNAN-CAYOSA

Governor for Northern Luzon

FERDINAND Y. MICLAT

Governor for Central Luzon

AMADOR Z. TOLENTINO, JR.

Governor for Southern Luzon

JOSE V. CABRERA

Governor for Bicolandia

ROLAND B. INTING

Governor for Eastern Visayas

ROAN I. LIBARIOS

Governor for Eastern Mindanao

NATIONAL OFFICERS

(July 2009 - June 2011)

JUSTICE SANTIAGO M. KAPUNAN (Ret.)

Officer-in-Charge

Integrated Bar of the Philippines

ROSARIO T. SETIAS-REYES

National Director for Legal Aid

ALICIA A. RISOS-VIDAL

National Director for Bar Discipline

DEAN PACIFICO A. AGABIN

General Counsel

RODOLFO G. URBIZTONDODeputy General Counsel & Chief of Staff

TOMAS N. PRADO

National Secretary

ESTER SISON CRUZ

National Treasurer

JAIME M. VIBAR

National Executive Director

MARIA TERESITA C. SISON GOAssistant National Treasurer

Integrated Bar of the Philippines15 J. Vargas Avenue, Ortigas Center, Pasig City 1600Telephone: (632) 631-3014/18 � Fax: (632) 634-4697

Website: www.ibp.org.ph � Email: [email protected]

BOARD OF GOVERNORS

(2009-2011)

JUSTICE SANTIAGO M. KAPUNAN (Ret.)

Officer-in-Charge

OLIVER B. SAN ANTONIOPublic Relations Officer

IBP Journal Volume 35 No. 1 2010

Documents

Transcript of IBP Journal Volume 35 No. 1 2010