Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO LUKBAN, ET AL., respondents. Alfonso Mendoza for petitioners. City Fiscal Diaz for respondents. MALCOLM, J.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application forhabeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged illtreatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with

men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila. To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918. Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the

Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record. In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so. One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents. With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a government of laws to be established in the Philippine Islands. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us. As to criminal responsibility, it is true that the Penal Code in force in these Islands provides: Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or

residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.) We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the

women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition that the statutory provisions are confined to the case of imprisonment within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . . The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.) The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to

produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.) We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus. There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged. The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women,

at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents. The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong. In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separatehabeas corpus proceedings. Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done. The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of Manila. The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,

Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the court was only tardily and reluctantly acknowledged. It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such an amount is P100. In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record theReplica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered. In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. Arellano, C.J., Avancea and Moir, JJ., concur. Johnson, and Street, JJ., concur in the result.

Separate Opinions TORRES, J., dissenting: The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to change their residence. We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred and fifty women were assembled and placed aboard a steamer and transported to Davao, considering that the existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority of any legal provision which constitutes an exception to the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila. We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The said governmental authority, in carrying out his intention to suppress the segregated district or the community formed by those women in Gardenia Street, could have obliged the said women to return to their former residences in this city or in the provinces, without the necessity of transporting them to Mindanao; hence the said official is obliged to bring back the women who are still in Davao so that they may return to the places in which they lived prior to their becoming inmates of certain houses in Gardenia Street. As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if we take into account the difficulties encountered in bringing the said women who were free at Davao and presenting them before this court within the time fixed, inasmuch as it does not appear that the said women were living together in a given place. It was not because they were really detained, but because on the first days there were no houses in which they could live with a relative independent from one another, and as a proof that they were free a number of them returned to Manila and the others succeeded in living separate from their companions who continued living together. To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their domicile, it is necessary to consider not only the rights and interests of the said women and especially of the patrons who have been directing and conducting such a reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights and interests of the very numerous people of Manila where relatively a few transients accidentally and for some days reside, the inhabitants thereof being more than three hundred thousand (300,000) who can not, with indifference and without repugnance, live in the same place with so many unfortunate women dedicated to prostitution. If the material and moral interests of the community as well as the demands of social morality are to be taken into account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution in the midst of an enlightened population, for, although there were no positive laws prohibiting the existence of such houses within a district of Manila, the dictates of common sense and dictates of conscience of its inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the administrative authority order his hospitalization, reclusion, or concentration in a certain island or distant point in order to free from contagious the great majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons exist or stand good with respect to the unfortunate women dedicated to prostitution, and such reasons become stronger because the first persons named have contracted their diseases without their knowledge and even against their will, whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences, knowing positively that their constant intercourse with men of all classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it constitutes a secret disease among men and women, is still prejudicial to the human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great mortality and very serious prejudice to poor humanity. If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is usually older than she is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily and with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution, because it is evident that she can not join the society of decent women nor can she expect to get the same respect that is due to the latter, nor is it possible for her to live within the community or society with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should therefore be comprised within that class which is always subject to the police and sanitary regulations conducive to the maintenance of public decency and morality and to the conservation of public health, and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the administrative authorities. It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been worrying so much about the prejudice resulting from a governmental measure, which being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city in general and particularly the duties and responsibilities weighing upon the authorities which administer and govern it; they have forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty bound to take care of their children. For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who is directly responsible for the conservation of public health and social morality, the latter could take the step he had taken, availing himself of the services of the police in good faith and only with the purpose of protecting the immense majority of the population from the social evils and diseases which the houses of prostitution situated in Gardenia Street have been producing, which houses have been constituting for years a true center for the propagation of general diseases and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses of prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free practice of their shameful profession. In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar measures, more or less rigorous, respecting prostitutes, considering them

prejudicial to the people, although it is true that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had in view the ultimate object of the Government for the sake of the community, that is, putting an end to the living together in a certain place of women dedicated to prostitution and changing their domicile, with the problematical hope that they adopt another manner of living which is better and more useful to themselves and to society. In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take back and restore the said women who are at present found in Davao, and who desire to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should expressly make known to the clerk of court their preference to reside in Davao, which manifestation must be made under oath. This resolution must be transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be charged de officio. ARAULLO, J., dissenting in part: I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100. In the said decision, it is said: The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could not safely be brought before this court; and (3) presented affidavits to show that the parties in question or their lawyers waived their right to be present. According to the same decision, the said respondents ". . . did not produce the bodies of the persons in whose behalf the writ was granted; did not show impossibility of performance; and did not present writings, that waived the right to be present by those interested. Instead, a few stereotyped affidavits purporting to show that the women were contented with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated by the fact that during this time they were easily to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents." The majority opinion also recognized that, "That court, at the time the return to its first order was made, would have been warranted summarily in finding the respondent guilty of contempt of court,

and in sending them to jail until they obeyed the order. Their excuses for the non production of the persons were far from sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible effort to produce the women was made by the respondents." When the said return by the respondents was made to this court in banc and the case discussed, my opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order referred to in the decision was issued on December 10, 1918, requiring the respondents to produce before the court, on January 13, 1919, the women who were not in Manila, unless they could show that it was impossible to comply with the said order on the two grounds previously mentioned. With respect to this second order, the same decision has the following to say: In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and countercharges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. I do not agree to this conclusion. The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of the first order on November 4th till the 21st of the same month before taking the first step for compliance with the mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to the provincial governor o f Davao and naturally this halfhearted effort, as is so qualified in the decision, resulted in that none of the women appeared before this court on December 2nd. Thus, the said order was not complied with, and in addition to this noncompliance there was the circumstances that seven of the said women having returned to Manila at their own expense before the said second day of December and being in the antechamber of the court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were not produced before the court by the respondents nor did the latter show any effort to present them, in spite of the fact that their attention was called to this particular by the undersigned. The result of the said second order was, as is said in the same decision, that the respondents, on January 13th, the day fixed for the protection of the women before this court, presented technically the seven (7) women above-mentioned who had returned to the city at their own expense and the other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing them from Davao with their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with free transportation, renounced such a right, as is shown in the affidavits presented by the respondents to this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to Manila and presented before this court by the respondents in compliance with the said two orders. Fifty-nine (59) of them have returned to Manila through other means not furnished by the respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at

their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their inability to present any of the said women that the latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74) women already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and the municipal police, and had transportation facilities for the purpose. But the said respondent mayor brought only eight (8) of the women before this court on January 13th. This fact can not, in my judgment, with due respect to the majority opinion, justify the conclusion that the said respondent has substantially complied with the second order of this court, but on the other hand demonstrates that he had not complied with the mandate of this court in its first and second orders; that neither of the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision, principally responsible for the contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second order confirms the contempt committed by non-compliance with the first order and constitutes a new contempt because of non-compliance with the second, because of the production of only eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and transported to Davao against their will, committing the twenty-six (26) women who could not be found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals with the remedy of habeas corpus, presented by the petitioners and involving the question whether they should or not be granted their liberty, the respondent has not given due attention to the same nor has he made any effort to comply with the second order. In other words, he has disobeyed the said two orders; has despised the authority of this court; has failed to give the respect due to justice; and lastly, he has created and placed obstacles to the administration of justice in the said habeas corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said proceeding with the promptness which the nature of the same required. Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.) It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.) It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving the officer or circumventing him by any means, the result is the same as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.) While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the law and for the means it has provided in civilized communities for establishing justice, since true respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and obedience to their orders and just measures is so essentially a part of the life of the courts that it would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be said generally that where due respect for the courts as ministers of the law is wanting, a necessity arises for the use of compulsion, not, however, so much to excite individual respect as to compel obedience or to

remove an unlawful or unwarranted interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.) The power to punish for contempt is as old as the law itself, and has been exercised from the earliest times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers, the law-making power, or the courts. In the American states the power to punish for contempt, so far as the executive department and the ministers of state are concerned, and in some degree so far as the legislative department is concerned, is obsolete, but it has been almost universally preserved so far as regards the judicial department. The power which the courts have of vindicating their own authority is a necessary incident to every court of justice, whether of record or not; and the authority for issuing attachments in a proper case for contempts out of court, it has been declared, stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.) The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the authority of the court which issued the said orders, which loss might have been caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by some of the women illegally detained, in view of the fact that they were not brought to Manila by the respondents to be presented before the court and of the further fact that some of them were obliged to come to this city at their own expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the transportation of the said women; and the delay which was necessarily incurred in the resolution of the petition interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and duly obeyed and complied with, are circumstances which should be taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or both such fine and imprisonment. In the imposition of the penalty, there should also be taken into consideration the special circumstance that the contempt was committed by a public authority, the mayor of the city of Manila, the first executive authority of the city, and consequently, the person obliged to be the first in giving an example of obedience and respect for the laws and the valid and just orders of the duly constituted authorities as well as for the orders emanating from the courts of justice, and in giving help and aid to the said courts in order that justice may be administered with promptness and rectitude. I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him. Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the Attorney-General in order that, after a study of the same and deduction from the testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding informations for the prosecution and punishment of the crimes which have been committed on the occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes committed by reason of the same detention and while the women were in Davao. This will be one of the means whereby the just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands there should exist a government of laws and not a government of men and that this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect individual liberty from illegal encroachments.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents. Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner. Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents. MORAN, C.J.: Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents from proceeding with the case of petitioners. In support of his case petitioner tenders the following principal arguments. First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner." Second. That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the of the nation. In accordance with the generally accepted principle of international law of the present day including the Hague Convention the Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution. The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may remain pending which should be disposed of as in time of war. An importance incident to a conduct of war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And in the language of a writer a military commission has jurisdiction so long as a technical state of war continues. This includes the period of an armistice or military occupation up to the effective of a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal June, 1944.) Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of Executive Order No. 68. Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory. Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent

countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): . . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during then Commonwealth because it is an offense against the same sovereign people. . . . By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and punishable by our present Republic. Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training. Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our government but by the United State Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials. Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of such Military commission. For all the foregoing the petition is denied with costs de oficio. Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting: A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the laws and customs of land warfare. Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law were appointed prosecutor representing the American CIC in the trial of the case. The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission. The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as accusers. We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are aliens and have not been authorized by the Supreme Court to practice law there could not be any question that said person cannot appear as prosecutors in petitioner case as with such appearance they would be practicing law against the law. Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a clear idea of the question raised it is necessary to read the whole context of said order which is reproduced as follows: EXECUTIVE ORDER NO. 68. ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL. I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and laws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility of accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and prescribe the rules and regulation such trial. The National War crimes office is established within the office of the Judge Advocate General of the Army of the Philippines and shall function under the direction supervision and control of the Judge Advocate General. It shall proceed to collect from all available sources evidence of war crimes committed in the Philippines from the commencement of hostilities by Japan in December 1941, maintain a record thereof and bring about the prompt trial maintain a record thereof and bring about the prompt trial of the accused. The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters, Supreme Commander for the Allied power and shall exchange with the said Office information and evidence of war crimes. The following rules and regulation shall govern the trial off person accused as war criminals: ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. person accused as war criminal shall be tried by military commission to be convened by or under the authority of the Philippines. II. JURISDICTION (a) Over Person. Thee military commission appointed hereunder shall have jurisdiction over all persons charged with war crimes who are in the custody of the convening authority at the time of the trial. (b) Over Offenses. The military commission established hereunder shall have jurisdiction over all offenses including but not limited to the following: (1) The planning preparation initiation or waging of a war of aggression or a war in violation of international treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or deportation to slave labor or for other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere; improper treatment of hostage; plunder of public or private property wanton destruction of cities towns or village; or devastation not justified by military necessity. (3) Murder extermination enslavement deportation and other inhuman acts committed against civilian population before or during the war or persecution on political racial or religion ground in executive of or in connection with any crime defined herein whether or not in violation of the local laws. III. MEMBERSHIP OF COMMISSIONS (a) Appointment. The members of each military commission shall be appointed by the President of the Philippines or under authority delegated by him. Alternates may be appointed by the convening authority. Such shall attend all session of the commission, and in case of illness or other incapacity of any principal member, an alternate shall take the place of that member. Any vacancy among the members or alternates, occurring after a trial has begun, may be filled by the convening authority but the substance of all proceeding had evidence taken in that case shall be made known to the said new member or alternate. This facts shall be announced by the president of the commission in open court. (b) Number of Members. Each commission shall consist of not less than three (3) members. (c) Qualifications. The convening authority shall appoint to the commission persons whom he determines to be competent to perform the duties involved and not disqualified by personal interest or prejudice, provided that no person shall be appointed to hear a case in which he personally investigated or wherein his presence as a witness is required. One specially qualified member whose ruling is final in so far as concerns the commission on an objection to the admissibility of evidence offered during the trial. (d) Voting. Except as to the admissibility of evidence all rulings and finding of the Commission shall be by majority vote except that conviction and sentence shall be by the

affirmative vote of not less than conviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member present. (e) Presiding Member. In the event that the convening authority does not name one of the member as the presiding member, the senior officer among the member of the Commission present shall preside. IV. PROSECUTORS (a) Appointment. The convening authority shall designate one or more person to conduct the prosecution before each commission. (b) Duties. The duties of the prosecutor are: (1) To prepare and present charges and specifications for reference to a commission. (2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial. V. POWER AND PROCEDURE OF COMMISSION (a) Conduct of the Trial. A Commission shall: (1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or interference. (2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor. (3) Hold public session when otherwise decided by the commission. (4) Hold each session at such time and place as it shall determine, or as may be directed by the convening authority. (b) Rights of the Accused. The accused shall be entitled: (1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the accused of each offense charged. (2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his own choice, or to conduct his own defense. (3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his defense, and cross-examine each adverse witness who personally appears before the commission. (4) To have the substance of the charges and specifications, the proceedings and any documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. The Commission shall have power: (1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to witnesses and other persons and to question witnesses. (2) To require the production of documents and other evidentiary material. (3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and (2) above. (4) To have evidence taken by a special commissioner appointed by the commission. (d) Evidence. (1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable man. The commission shall apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted: (a) Any document, irrespective of its classification, which appears to the commission to have been signed or issued by any officer, department, agency or member of the armed forces of any Government without proof of the signature or of the issuance of the document. (b) Any report which appears to the commission to have been signed or issued by the International Red Cross or a member of any medical service personnel, or by any investigator or intelligence officer, or by any other person whom commission considers as possessing knowledge of the matters contained in the report. (c) Affidavits, depositions or other signed statements. (d) Any diary, letter to other document, including sworn statements, appearing to the commission to contain information relating to the charge. (e) A copy of any document or other secondary evidence of the contents, if the original is not immediately available. (2) The commission shall take judicial notice of facts of common knowledge, official government documents of any nation, and the proceedings, records and findings of military or other agencies of any of the United Nation. (3) A commission may require the prosecution and the defense to make a preliminary offer of proof whereupon the commission may rule in advance on the admissibility of such evidence. (4) The official position of the accused shall not absolve him from responsibility nor be considered in mitigation of punishment. Further action pursuant to an order of the accused's superior, or of his Government, shall not constitute a defense, but may be considered in mitigation of punishment if the commission determines that justice so requires.

(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any showing that they were voluntarily made. If it is shown that such confession or statement was procured by mean which the commission believe to have been of such a character that may have caused the accused to make a false statement the commission may strike out or disregard any such portion thereof as was so procured. (e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows unless modified by the commission to suit the particular circumstances: (1) Each charge and specification shall be read or its substance stated in open court. (2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty." (3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other time require the prosecutor to state what evidence he proposes to submit to the commission and the commission thereupon may rule upon the admissibility of such evidence. (4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether he evidence before the commission may defer action on any such motion and permit or require the prosecution to reopen its case and produce any further available evidence. (5) The defense may make an opening statement prior to presenting its case. The presiding member may, at this any other time require the defense to state what evidence it proposes to submit to the commission where upon the commission may rule upon the admissibility of such evidence. (6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being admissible. (7) The defense and thereafter the prosecution shall address the commission. (8) The commission thereafter shall consider the case in closed session and unless otherwise directed by the convening authority, announce in open court its judgment and sentence if any. The commission may state the reason on which judgment is based. ( f ) Record of Proceedings. Each commission shall make a separate record of its proceeding in the trial of each case brought before it. The record shall be prepared by the prosecutor under the direction of the commission and submitted to the defense counsel. The commission shall be responsible for its accuracy. Such record, certified by the presiding member of the commission or his successor, shall be delivered to the convening authority as soon as possible after the trial. (g) Sentence. The commission may sentence an accused, upon conviction to death by hanging or shooting, imprisonment for life or for any less term, fine or such other punishment as the commission shall determine to be proper.

(h) Approval of Sentence. No. sentence of a military commission shall be carried into effect until approved by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until confirmed by the President of the Philippines. For the purpose of his review the Chief of Staff shall create a Board of Review to be composed of not more than three officers none of whom shall be on duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without prejudice to the accused) remand the case for rehearing before a new military commission; but he shall not have authority to increase the severity of the sentence. Except as herein otherwise provided the judgment and sentence of a commission shall final and not subject to review by any other tribunal. VI. RULE-MAKING POWER Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern its procedure, not inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the convening authority]or by the President of the Philippines. VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its mission as hereinabove set forth, and shall be expended in accordance with the recommendation of the Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property Commission are hereby specification reserved for use off the National War Crimes Office. Executive Order No. 64, dated August 16, 1945, is hereby repealed. Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven, and of the Independence of the Philippines, the second. MANUEL ROXAS President of the Philippines By the President: EMILIO ABELLO Chief of the Executive Office EXECUTIVE LEGISLATION Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment. The first question that is trust at our face spearheading a group of other no less important question, is whether or not the President of the Philippines may exercise the legislative power expressly vested in Congress by the Constitution. .

The Constitution provides: The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and House of Representatives. (Section 1, Article VI.) While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the President of the Philippines, to the specific provision which allow the president of the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court. There cannot be any question that the member of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and practiced by modern democracies, especially the United State of America, whose Constitution, after which ours has been patterned, has allocated the three power of government legislative, executive, judicial to distinct and separate department of government. Because the power vested by our Constitution to the several department of the government are in the nature of grants, not recognition of pre-existing power, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue express authority of the Constitution. Executive Order No. 68 establishes a National War Crimes Office and the power to establish government office is essentially legislative. The order provides that person accused as war criminals shall be tried by military commissions. Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution in Congress. . It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court. It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commission. It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress. Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme Court. Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive Order No. 68 under the emergency power

granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600. AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS. Be it enacted by the National Assembly of the Philippines: SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it necessary to invest the President of the Philippines with extraordinary power in order to safeguard the integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to the people adequate shelter and clothing and sufficient food supply, and by providing means for the speedy evacuation of the civilian population the establishment of an air protective service and the organization of volunteer guard units, and to adopt such other measures as he may deem necessary for the interest of the public. To carry out this policy the President is authorized to promulgate rules and regulations which shall have the force and effect off law until the date of adjournment of the next regulation which shall have the force and effect of law until the date of adjournment of the next regular session of the First Congress of the Philippines, unless sooner amended or repealed by the Congress of Philippines. Such rules and regulation may embrace the following objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such services as may bee necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger and destitution; (4) to take over industrial establishment in order to insure adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work in productive enterprises or in the interest of national security; (6) to regulate the normal hours of work for wage-earning and salaried employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the productive enterprises; (8) to commandership and other means of transportation in order to maintain, as much as possible, adequate and continued transportation facilities; (9) to requisition and take over any public service or enterprise for use or operation by the Government;(10) to regulate rents and the prices of articles or commodities of prime necessity, both imported and locally produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations, and private control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical, building, material, implements, machinery, and equipment required in agriculture and industry, with power to requisition these commodities subject to the payment of just compensation. (As amended by Com. Act No. 620.) SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate any officer, without additional compensation, or any department, bureau, office, or instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this Act or any of the rules or regulations promulgated by the President under the authority of section one of this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing director, or person charge with the management of the business of such firm, or corporation shall be criminally responsible therefor. SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the opening of its next regular session whatever action has been taken by him under the authority herein granted. SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and ninety-eight. SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be unconstitutional and void, such declaration shall not invalidate the remainder of this Act. SEC. 7. This Act shall take upon its approval. Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671 AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH EMERGENCY. Be it enacted the National Assembly of the Philippines; SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency. SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby authorized, during the existence of the emergency, to promulgate such rules and regulation as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches, department, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth including the determination of the order of precedence of the heads of the Executive Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and appropriation which would lapse or otherwise became inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts for

purposes that he may approve; (h) to declare the suspension of the collection of credits or the payment of debts; and (i) to exercise such other power as he may deem necessary to enable the Government to fulfill its responsibilities and to maintain and enforce its authority. SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him under the power herein granted. SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide. Approved December 16, 1941. The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their consideration and passage, not only as one of the members of said legislative body as chairman of the Committee on Third Reading population Known as the "Little Senate." We are, therefore in a position to state that said measures were enacted by the second national Assembly for the purpose of facing the emergency of impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which under the exceptional circumstances then prevailing legislative power were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution: In time of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out declared national policy. (Article VI, section 26.) It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created by the war as to extend it farther would be violative of the express provision of the Constitution. We are of the opinion that there is no doubt on this question.; but if there could still be any the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law. The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was already replaced by the Republic of the Philippines with the proclamation of our Independence, two district, separate and independence legislative organs, Congress and the President of the Philippines would have been and would continue enacting laws, the former to enact laws of every nature including those of emergency character, and the latter to enact laws, in the form of executive orders, under the so-called emergency powers. The situation would be pregnant with dangers to peace and order to the rights and liberties of the people and to Philippines democracy. Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one can dispute the President of the Philippines may take advantage of he long recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments of

Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution. Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process and equal protection of the law. It is especially so, because it permit the admission of many kinds evidence by which no innocent person can afford to get acquittal and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt. The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can expected. For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant petition.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,respondents. Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance. City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. Dionisio Reyes as Amicus Curiae. Marcial G. Mendiola as Amicus Curiae. Emiliano R. Navarro as Amicus Curiae. LABRADOR, J.: I. The case and issue, in general This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment? II. Pertinent provisions of Republic Act No. 1180 Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and measures and labor and other laws relating to trade,

commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. III. Grounds upon which petition is based-Answer thereto Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of statutory origin. IV. Preliminary consideration of legal principles involved a. The police power. There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and the issue accordingly resolved. It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and

public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause. b. Limitations on police power. The basic limitations of due process and equal protection are found in the following provisions of our Constitution: SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution) These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.) c. The, equal protection clause. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.) d. The due process clause. The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a

reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction. e. Legislative discretion not subject to judicial review. Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the wisdom of the law. V. Economic problems sought to be remedied With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or occupation, as old as society itself, which from the immemorial has always been open to residents, irrespective of race, color or citizenship. a. Importance of retail trade in the economy of the nation. In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is unknown. But as group life develops and families begin to live in communities producing more than what they consume and needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food and supplies are ministered to members of the communities comprising the nation. There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-day existence. b. The alien retailer's trait. The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in far away nooks where the beginnings of community life appear,

ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a slave. Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he appears to be harmless and extremely useful. c. Alleged alien control and dominance. There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal foods and products would easily become full and complete. Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide. The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following tables: Assets Year and Retailers Nationality 1941: Filipino .......... Chinese ........... Others ............ 1947: Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03 106,671 200,323,138 15,356 118,348,692 1,646 40,187,090 55.82 174,181,924 32.98 148,813,239 11.20 13,630,239 51.74 44.21 4.05 No.Establishments Pesos Per cent Distribution Gross Sales Pesos Per cent Distribution

Chinese ........... Others ........... 1948: (Census) Filipino .......... Chinese .......... Others .......... 1949: Filipino .......... Chinese .......... Others .......... 1951: Filipino ......... Chinese .......... Others ..........

13,774 106,156,218 354 8,761,260

33.56 205,701,134 .49 4,927,168

41.96 1.01

113,631 213,342,264 12,087 93,155,459 422 10,514,675

67.30 467,161,667 29.38 294,894,227 3.32 9,995,402

60.51 38.20 1.29

113,659 213,451,602 16,248 125,223,336 486 12,056,365

60.89 462,532,901 35.72 392,414,875 3.39 10,078,364

53.47 45.36 1.17

119,352 224,053,620 17,429 134,325,303 347 8,614,025

61.09 466,058,052 36.60 404,481,384 2.31 7,645,327

53.07 46.06 87

AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT Year and Retailer's Nationality 1941: Filipino ............................................. Chinese .............................................. Others ............................................... 1947: Filipino ............................................. 1,878 2,516 1,878 7,707 24,415 1,633 9,691 8,281 Item Assets (Pesos) Gross Sales (Pesos)

Chinese ........................................... Others .............................................. 1948: (Census) Filipino ............................................. Chinese ............................................. Others .............................................. 1949: Filipino ............................................. Chinese .............................................. Others .............................................. 1951: Filipino ............................................. Chinese ............................................. Others ...............................................

7,707 24,749

14,934 13,919

1,878 7,707 24,916

4,111 24,398 23,686

1,878 7,707 24,807

4,069 24,152 20,737

1,877 7,707 24,824

3,905 33,207 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.) The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include mere market vendors, whose capital is necessarily small.. The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the numerical gap through their assests and gross sales which average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much more. The same official report, pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply. d. Alien control and threat, subject of apprehension in Constitutional convention.

It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the enactment of the disputed nationalization would never have been adopted. The framers of our Constitution also believed in the existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says: But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution) envisages an organized movement for the protection of the nation not only against the possibilities of armed invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.) Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that compose the Filipino community. e. Dangers of alien control and dominance in retail. But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its

consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed. We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. f. Law enacted in interest of national economic survival and security. We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens. VI. The Equal Protection Limitation a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. The alien

resident owes allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem. Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands. The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a legitimate distinction can be found between one and the other. b. Difference in alien aims and purposes sufficient basis for distinction. The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution. Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law sought to be voided as contrary thereto: . . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with

mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary." c. Authorities recognizing citizenship as basis for classification. The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows: "Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected." The rule in general is as follows: Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.) In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to have regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which

prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void because the court found that there was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee. d. Authorities contra explained. It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the administration and implementation of the law, and

that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act in respect to which the classification was proposed. The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and the national, thus: . . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the Legislature was without plausible reason for making the classification, and therefore appropriate discriminations against aliens as it relates to the subject of legislation. . . . . VII. The Due Process of Law Limitation. a. Reasonability, the test of the limitation; determination by legislature decisive. We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United States that: . . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . . . xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.) Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . . xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.) In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held: . . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . . Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality: In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business, is or is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has a sufficient foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the health, safety, morals, comfort, and general welfare of the public. b. Petitioner's argument considered. Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency. The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,

which is not merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness. The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law: This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our destiny. All aspects of our life, even our national security, will be at the mercy of other people. In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security it respects existing rights. The approval of this bill is necessary for our national survival. If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative authority. c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The fathers of the Constitution must have given to the legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power. Thus they declared the their Resolution: That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.) It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the operation of the public utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade is only a

continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional? The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry plight of the nationals with the complacency and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national economy. d. Provisions of law not unreasonable. A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity. VIII. Alleged defect in the title of the law A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads: No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of the bill. What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than

either prohibition or nationalization. Both of these have always been included within the term regulation. Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.) Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.) The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.) The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all other provisions found in the body of the Act. One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have received the notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially the nationalization and the prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled. IX. Alleged violation of international treaties and obligations Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations Organizations, such as Norway and

Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.) X. Conclusion Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction. The petition is hereby denied, with costs against petitioner. Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and duly approved by the President of the Republic. But the rule does not preclude courts from inquiring and determining whether the Act offends against a provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have heretofore been engaged in said business. When they did engage in the retail business there was no prohibition on or against them to engage in it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their death or voluntary retirement from the business or forfeiture of their license; and corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten years from the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of the Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their property without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until the expiration of the term of the existence of the association and partnership, whichever event comes first, and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell or dispose of their business. The price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the association, partnership and the alien had built up during a long period of effort, patience and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of his property without due process of law2 and that no person shall be denied the equal protection of the laws3 would have no meaning as applied to associations or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership as agreed upon by the associations and partners and within six months after the death of their predecessor-in-interest. The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs of such lands.4 For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to therein to wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the

retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws clauses of the Constitution.

Footnotes
1

Section 76, Act No. 1459.. Section 1 (1), Article III, of the Constitution.. Ibid. Section 5, Article XIII, of the Constitution. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-49112 February 2, 1979 LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.: The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its implementation are concerned, for transgressing the fundamental principle of non- delegation of legislative power. The Letter of Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2Impressed with a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power

measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed. The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicle was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Communications.10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well provide a practical alternative road safety device, or a better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile. A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court. 16 Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed. 1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force,Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare." 24 2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety. 3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact

may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute. 29 4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rearend collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant for exaggeration. 5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision. 31 6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the

challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it. 32 7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on is wisdom cannot be sustained. 33 8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority non-legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * * adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. 10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38"Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs. Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur. Makasiar, J, reserves the right to file a separate opinion. Aquino J., took no part. Concepcion J., is on leave. Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting: I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral

argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar. Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia: 1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to be demonstrated. 2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country; 3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged; 4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and 5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the challenged order. I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

#Footnotes

1 Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479 (1976). 2 He was assisted by Assistant Solicitor Ruben E. Agpalo and Solicitor Amado D. Aquino. 3 Petition, par. III. 4 Ibid, par. IV. 5 Ibid, par. V. 6 Ibid, par. VIII. 7 No. 716. 8 Petition, par. VII. 9 Ibid, par. VIII. 10 Ibid. 11 Ibid, par. IX. 12 Ibid, par. X. 13 Ibid, par. XI. 14 Ibid, par. X. 15 Ibid, par. XI. 16 Resolution of the Court dated October 19, 1978. 17 Answer, pars. 1-6. 18 Ibid, par. 8. 19 70 Phil. 726 (1940). The opinion was penned by Justice Laurel. 20 L-20387, January 31, 1968; 22 SCRA 424. The writer of this opinion is the ponente. 21 L-32096, October 24, 1970, 35 SCRA 481. The writer of this opinion was likewise the ponente. 22 Answer, par. 18 (a) and (b). 23 License Cases, 5 How. 504, 583.

24 35 SCRA 481, 487-488. There is no need to repeat where Calalang and Morfe are reported. Primicias v. Fugoso is reported in 80 Phil. 71; Rubi v. Provincial Board, where the first quotation from Justice Malcolm came, in 39 Phil. 660, 708 (1919); and Smith Bell and Co. v. Natividad, his other decision cited, in 40 Phil. 136 (1919); Helvering v. Davis, with Justice Cardozo writing the opinion, in 301 US 619 (1937). 25 Republic Act No. 5715 (1969). 26 Commonwealth Act No. 548 (1940). 27 Cf. People v. Lagman 66 Phil. 13 (1938). Even earlier in United States v. Pompeya, 31 Phil. 245 (1915), this Court, by virtue of the police power, held valid a provision of the then Municipal Code requiring " able-bodied" males in the vicinity between ages to perform patrol duty not ex one day each week. 28 L-24693, July 31, 1967, 20 SCRA 849. 29 Ibid. 867. The excerpt came from O'Gorman and Young v. Hartford Fire Insurance Co., 282 US 251, 328 (1931). 30 Answer, par. 18 (a). The excerpt came from Samson v. Mayor of Bacolod City, L28745; October 23, 1974; 60 SCRA 267; 270. 31 Ibid, par. 18 (c). 32 Ibid, par. 18 (d) and (e), 33 Morfe v. Mutuc, 22 SCRA 424, 450-451. The citation from Justice Laurel may be traced to Angara v. Electoral Commission, 63 Phil. 139, 160 (1936); from Justice Laurel to People v. Carlos, 78 Phil. 535, 548 (1947); from Justice Montemayor to Quintos v. Lacson, 97 Phil. 290, 293 (1955); and from Justice Labrador to Ichong v. Hernandez, 101 Phil. 1155, 1166 (1957). Chief Justice Concepcion's reiteration of the doctrine, paraphrased in the quoted opinion, was made by him in Gonzales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA 774. Cf. Province of Pangasinan v. Secretary of Public Works, 27861, October 3l,1969, 30 SCRA 134. 34 SCRA 481, 497-498. The following cases were also cited. People v. Exconde, 101 Phil. 1125 (1957), and People v. Jolliffe, 105 Phil. 677 (1959). 35 Petition, par. III. 36 Article 11, Section 3 of the Constitution reads in full "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the Policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 37 73 Phil. 408 (1941). 38 Ibid, 412.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner, vs. RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents. Ramon A. Gonzales in his own behalf as petitioner. Office of the Solicitor General and Estanislao Fernandez for respondents. CONCEPCION, J.: This is an original action for prohibition with preliminary injunction. It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein1 for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent. Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their memoranda. I. Sufficiency of petitioner's interest. Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn

Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines who wish to dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said funds. II. Exhaustion of administrative remedies. Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies available to him before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore, untenable. III. Merits of petitioner's cause of action. Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any special authority". Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on which our view need not be expressed we are unanimously of the opinion assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation orgovernment agency to import rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the President of the Philippines may authorize the importation of these commodities through any government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from importing rice and corn. Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government

agencies and/or agents. The applicability of said laws even to importations by the Government as such, becomes more apparent when we consider that: 1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines" and, hence, by or on behalf of the Government of the Philippines; 2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private parties upon payment of the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and 3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject to the additional penalty specified therein. A public official is an officer of the Government itself, as distinguished from officers or employees of instrumentalities of the Government. Hence, the duly authorized acts of the former are those of the Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made by the very government is patent. Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the Government." Pursuant to Section 1 thereof: The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of the municipal and provincial governments and the Government of the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices, agencies, branches, and bodies of any description, including government-owned companies, authorized to requisition, purchase, or contract or make disbursements for articles, materials, and supplies for public use, public buildings, or public works shall give preference to materials ... produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.) Under this provision, in all purchases by the Government, including those made by and/or for the armed forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452. The attempt to justify the proposed importation by invoking reasons of national security predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to discourage our farmers from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by the administration throughout the country under the proper dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.) Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws. Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he has placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it would keep us perpetually under martial law. It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is said. If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for stockpile of the Army not the civilian population. But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of law. And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in the compliance with said Acts. It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions, which have not been, and should be complied with. IV. The contracts with Vietnam and Burma It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the

Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense. The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States. As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposed importation which has not been consummated as yet is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied with without importing the commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws. V. The writ of preliminary injunction. The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted. WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered. Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur. Paredes and Regala, JJ., concur in the result.

Separate Opinions BAUTISTA ANGELO, J., concurring: Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person, association, corporation or government agency to import rice and corn into any point in the Philippines. The exception is if there is an existing or imminent shortage of such commodity of much gravity as to constitute national emergency in which case an importation may be authorized by the President when so certified by the National Economic Council. However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice and corn canonly be made by private parties thereby prohibiting from doing so the Rice and Corn Administration or any other government agency. Republic Act 3452 does not expressly repeal Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of prohibiting completely the government from importing rice and corn into the Philippines? My answer is in the negative. Since this Act does not in any manner provide for the importation of rice and corn in case of national emergency, the provision of the former law on that matter should stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice and Corn Administration, or any other government agency, may therefore still import rice and corn into the Philippines as provided in Republic Act 2207 if there is a declared national emergency. The next question that arises is: Can the government authorize the importation of rice and corn regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the Philippine Army as a military precautionary measure for military stockpile?

Respondents answer this question in the affirmative. They advance the argument that it is the President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of the country as well as to the fulfillment of our international commitments in Southeast Asia in the event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an essential requirement of defense preparation in view of the limited local supply and the probable disruption of trade and commerce with outside countries in the event of armed hostilities, and this military precautionary measure is necessary because of the unsettled conditions in the Southeast Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence Service of the Military Department of our Government. This advocacy, they contend, finds support in the national defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1), which provides: (a) The preservation of the State is the obligation of every citizen. The security of the Philippines and the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times.(Emphasis supplied) Indeed, I find in that declaration of policy that the security of the Philippines and its freedom constitutes the core of the preservation of our State which is the basic duty of every citizen and that to secure which it is enjoined that the President employ all the resources at his command. But over and above all that power and duty, fundamental as they may seem, there is the injunction that the civil authority shall always be supreme. This injunction can only mean that while all precautions should be taken to insure the security and preservation of the State and to this effect the employment of all resources may be resorted to, the action must always be taken within the framework of the civil authority. Military authority should be harmonized and coordinated with civil authority, the only exception being when the law clearly ordains otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor of military action concerning importation of rice and corn. An exception must be strictly construed. A distinction is made between the government and government agency in an attempt to take the former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of the Philippines under the Revised Administrative Code refers to that entity through which the functions of government are exercised, including the various arms through which political authority is made effective whether they be provincial, municipal or other form of local government, whereas a government instrumentality refers to corporations owned or controlled by the government to promote certain aspects of the economic life of our people. A government agency, therefore, must necessarily refer to the government itself of the Republic, as distinguished from any government instrumentality which has a personality distinct and separate from it (Section 2). The important point to determine, however, is whether we should enjoin respondents from carrying out the importation of the rice which according to the record has been authorized to be imported on government to government level, it appearing that the arrangement to this effect has already been

concluded, the only thing lacking being its implementation. This is evident from the manifestation submitted by the Solicitor General wherein it appears that the contract for the purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our government and the governments of Vietnam and Burma, respectively. If it is true that, our government has already made a formal commitment with the selling countries there arises the question as to whether the act can still be impeded at this stage of the negotiations. Though on this score there is a divergence of opinion, it is gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had the writ been issued, our government would have been placed in a predicament where, as a necessary consequence, it would have to repudiate a duly formalized agreement to its great embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the Court.

BARRERA, J., concurring: Because of possible complications that might be aggravated by misrepresentation of the true nature and scope of the case before this Court, it is well to restate as clearly as possible, the real and only issue presented by the respondents representing the government. From the answer filed by the Solicitor General, in behalf of respondents, we quote: The importation of the rice in question by the Armed Forces of the Philippines is for military stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief and as a military precautionary measure in view the worsening situation in Laos and Vietnam and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2; emphasis supplied.) During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise reiterated the imported rice was for military stockpiling, and which he admitted that some of it went to the Rice and Corn Administration, he emphasized again and again that rice was not intended for the RCA for distribution to people, as there was no shortage of rice for that purpose but it was only exchanged for palay because this could better preserved. From the memorandum filed thereafter by the Solicits General, again the claim was made: We respectfully reiterate the arguments in our answer dated October 4, 1963 that the importation of rice sought be enjoined in this petition is in the exercise of the authority vested in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a measure of military preparedness demanded by a real and actual threat of emergency in the South East Asian countries. (p. 1, Emphasis supplied.) xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show the necessity for the stockpiling of rice for army purposes, which is the very reason for the importation. xxx xxx xxx

As it is, the importation in question is being made by the Republic of the Philippines for its own use, and the rice is not supposed to be poured into the open market as to affect the price to be paid by the public. (p. 4, Emphasis supplied.) xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that effect, does not include in its prohibition importation by the Government of rice for its own use and not for the consuming public, regardless of whether there is or there is no emergency. (p. 5, Emphasis supplied.) From the above, it not only appears but is evident that the respondents were not concerned with the present rice situation confronting the consuming public, but were solely and exclusively after the stockpiling of rice for thefuture use of the army. The issue, therefore, in which the Government was interested is not whether rice is imported to give the people a bigger or greater supply to maintain the price at P.80 per ganta for, to quote again their contention: "the rice is not supposed to be poured into the open market to affect the price to be paid by the public, as it is not for the consuming public, regardless of whether there is or there is no emergency", but whether rice can legally be imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this Court can not accept the contention of the respondents that this importation is beyond and outside the operation of these statutes. I can only emphasize that I see in the theory advanced by the Solicitor General a dangerous trend that because the policies enunciated in the cited laws are for the protection of the producers and the consumers, the army is removed from their application. To adopt this theory is to proclaim the existence in the Philippines of three economic groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is more portentous is the effect to equate the army with the Government itself. Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged threat of emergency in the Southeast Asian countries. But the existence of this supposed threat was unilaterally determined by the Department of National Defense alone. We recall that there exists a body called the National Security Council in which are represented the Executive as well as the Legislative department. In it sit not only members of the party in power but of the opposition as well. To our knowledge, this is the highest consultative body which deliberates precisely in times of emergency threatening to affect the security of the state. The democratic composition of this council is to guarantee that its deliberations would be non-partisan and only the best interests of the nation will be considered. Being a deliberative body, it insures against precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any change or development in the political climate in any region of the world is apt to be taken as an excuse for the military to conjure up a crisis or emergency and thereupon attempt to override our laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of precautionary mobilization measure avowedly in the interest of the security of the state. One need not, be too imaginative to perceive a hint of this in the present case. The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult and delicate task it had to discharge. Its position is liable to be exploited by some for their own purposes by claiming and making it appear that the Court is unmindful of the plight of our people during these days of hardship; that it preferred to give substance to the "niceties of the law than heed the needs of the people. Our answer is that the Court was left no alternative. It had, in compliance with its duty, to decide the case upon the facts presented to it. The respondents, representing the administration, steadfastly maintained and insisted that there is no rice shortage; that the imported rice is not for the consuming public and is not supposed to be placed in the open

market to affect the price to be paid by the public; that it is solely for stockpiling of the army for future use as a measure of mobilization in the face of what the Department of National Defense unilaterally deemed a threatened armed conflict in Southeast Asia. Confronted with these facts upon, which the Government has built and rested its case, we have searched in vain for legal authority or cogent reasons to justify this importation made admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452. I say admittedly, because respondents never as much as pretended that the importation fulfills the conditions specified in these laws, but limited themselves to the contention, which is their sole defense that this importation does not fall within the scope of said laws. In our view, however, the laws are clear. The laws are comprehensive and their application does not admit of any exception. The laws are adequate. Compliance therewith is not difficult, much less impossible. The avowed emergency, if at all, is not urgently immediate. In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under the Constitution. It has to decide, when called upon to do so in an appropriate proceeding, all cases in which the constitutionality or validity of any treaty, law, ordinance, executive order or regulation is in question. We can not elude this duty. To do so would be culpable dereliction on our part. While we sympathize with the public that might be adversely affected as a result of this decision yet our sympathy does not authorize us to sanction an act contrary to applicable laws. The fault lies with those who stubbornly contended and represented before this Court that there is no rice shortage, that the imported rice is not intended for the consuming public, but for stockpiling of the army. And, if as now claimed before the public, contrary to the Government's stand in this case, that there is need for imported rice to stave off hunger, our legislature has provided for such a situation. As already stated, the laws are adequate. The importation of rice under the conditions set forth in the laws may be authorized not only where there is an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the situation is available, if only those who have the duty to execute the laws perform their duty. If there is really need for the importation of rice, who adopt some dubious means which necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under the rule of law. Adoption as a government policy of the theory of the end justifies the means brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of freedom. For these reasons, I concur in the decision of the Court.

Separate Opinions Footnotes

1

The Secretary of National Defense, the Auditor General, the Secretary of Commerce and Industry, and the Secretary Justice.
2

275 hectares. Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30, 1963.

Mangubat vs. Osmea, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078, May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.

Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31, 1963.

In the present case, respondents allege in their answer that "the importation ... in question ... is authorized by the President.
7

Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000, September 25, 1959.
8

Which provides that the national defense policy of the Philippines shall be follows: (a) The preservation of the state is the obligation of every citizen. The security of the Philippines and the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times. xxx xxx xxx

In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act. The Constitution and What It Means Today, pp. 95-96.

10

11

The Power of the President as Commander-in-Chief is primarily that of military command in wartime, and as such includes, as against the persons and property of enemies of the United States encountered within the theater of military operations, all the powers allowed a military commander in such cases by the Law of Nations. President Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective within the theater of military operations while the war lasted, but no longer. (p. 93, Emphasis supplied.)
12

From an early date the Commander-in-Chief power came to be merged with the President's duty to take care that the laws be faithfully executed. So, while in using military force against unlawful combinations too strong to be dealt with through the ordinary processes of law the President acts by authorization of statute, his powers are still those of Commander-in-Chief. ... Under "preventive martial law", so-called because it authorizes "preventive" arrests and detentions, the military acts as an adjunct of the civil authorities but not necessarily subject to their orders. It may be established whenever the executive organ, State or national, deems it to be necessary for the restoration of good order. The concept, being of judicial origin, is of course for judicial application, and ultimately for application by the Supreme Court, in

enforcement of the due process clauses. (See, also, Section III of this Article, and Article IV, Section IV.) (Pp. 95-96, Emphasis supplied.)

Republic of the Philippines SUPREME COURT Manila EN BANC August 15, 1961 IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking the examination. ARTURO EFREN GARCIA, petitioner. RESOLUTION BARRERA, J.: Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished in Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished the law course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the law profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law profession in the Philippines without submitting to the required bar examinations. After due consideration, the Court resolved to deny the petition on the following grounds: (1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11 thereof; The Nationals of each of the two countries who shall have obtained recognition of the validity of their academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the territory of the Other, . . .. (Emphasis supplied). from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines. (2) Article I of the Treaty, in its pertinent part, provides . The nationals of both countries who shall have obtained degree or diplomas to practice the liberal professions in either of the Contracting States, issued by competent national

authorities, shall be deemed competent to exercise said professions in the territory of the Other, subject to the laws and regulations of the latter. . . .. It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have the force of law, require that before anyone can practice the legal profession in the Philippine he must first successfully pass the required bar examinations; and (3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the lower to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil. Constitution). Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur. Bautista Angelo, J., on leave, took no part. Concepcion, J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TRANQUILINO LAGMAN, defendant-appellant. ----------------------------G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMITIVO DE SOSA, defendant-appellant. Severino P. Izon for appellants. Office of the Solicitor-General Tuason for appellee. AVANCEA, J.: In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936, willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The

evidence shows that these two appellants were duly notified by the corresponding authorities to appear before the Acceptance Board in order to register for military service in accordance with law, and that the said appellants, in spite of these notices, had not registered up to the date of the filing of the information. The appellants do not deny these facts, but they allege in defense that they have not registered in the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to support, and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish to kill or be killed. Each of these appellants was sentenced by the Court of First Instance to one month and one day of imprisonment, with the costs. In this instance, the validity of the National Defense Law, under which the accused were sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the Philippines provides as follows: SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service. The National Defense Law, in so far as it establishes compulsory military service, does not go against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein.
1vvphl.nt

In the United States the courts have held in a series of decisions that the compulsory military service adopted by reason of the civil war and the world war does not violate the Constitution, because the power to establish it is derived from that granted to Congress to declare war and to organize and maintain an army. This is so because the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of property without due process of law, because, in its just sense, there is no right of property to an office or employment. The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service is the defense of the State, whether actual or whether in preparation to make it more effective, in case of need. The circumstance that the appellants have dependent families to support does not excuse them from their duty to present themselves before the Acceptance Board because, if such circumstance exists, they can ask for determent in complying with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1). The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So ordered. Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent. Vicente Sotto for petitioner. Office of the Solicitor-General Tuason for respondent. LAUREL, J.: The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows: "In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein. The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive

or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.) The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious

worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code). In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows: No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same: SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses incident thereto. SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous to the Government. SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury. SEC. 4. This act shall take effect on its approval. Approved, February 21, 1933. It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02. Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage

of an event considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.) We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional inhibition. The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-43800 July 29, 1977 LEONILA LAUREL ALMEDA and VENANCIO ALMEDA, Petitioners, vs. THE HONORABLE COURT OF APPEALS and EULOGIO GONZALES, respondents. Dizon & Vitug and Cornell S. Valdez for petitioners. Dennis B. Recon Juanito Hernandez and Oseas A. Martin for private respondent,

MARTIN, J.: This is an agrarian case. Three questions of consequential effects are raised: first is there a tenant's right of redemption in sugar and coconut lands; second, is prior tender or judicial consignation of the redemption price a condition precedent for the valid exercise of the right of redemption; and third, does the Court of Agrarian Relations have jurisdiction over complaints for redemption of sugar and coconut lands. Respondent Eulogio Gonzales is an agricultural share tenant of Glicerio, Sinfroso, Susana, Maria, Sebastian, Rufina, Bienvenido, Besmark and Cesar, all surnamed Angeles, on their 46,529-square land situated in Tanauan, Batangas, and devoted to sugar cane and coconuts. On September 30, 1968, the landowners sold the property to petitioners-spouses Leonila Laurel Almeda and Venancio Almeda without notifying respondent-tenant in writing of the sale. The document of sale was registered with the Register of Deeds of Tanauan, Batangas on March 27, 1969. Respondent-tenant thus seeks the redemption of the land in a complaint filed on March 27, 1971, pursuant to the provisions of Sections 11 and 12 of the Code of Agrarian Reforms, with the Court of Agrarian Relations at Lipa City. Answering the complaint, petitioners-spouses state, among other things, that long before the execution of the deed of sale, Glicerio Angeles and his nephew Cesar Angeles first offered the sale of the land to respondent Gonzales, but the latter said that he had no money; that respondenttenant, instead, went personally to the house of petitioners-spouses and implored them to buy the land for fear that if someone else would buy the land, he may not be taken in as tenant; that respondent-tenant is a mere dummy of someone deeply interested in buying the land, that respondent-tenant made to tender of payment or any valid consignation in court at the time he filed the complaint for redemption. At the hearing of May 29, 1973 the parties waived their right to present evidence and, instead, agreed to file simultaneous memoranda upon which the decision of the court would be based. On October 10, 1973, the Agrarian Court rendered judgment authorizing, the respondent-tenant, Eulogio Gonzales, to redeem the tenanted land for P24,000.00, the said amount to be deposited by him with the Clerk of Court within fifteen (15) days from receipt of the decision. Petitioners-spouses excepted to the ruling of the Agrarian Court and appealed the case to the Court of Appeals. On January 30, 1976, the Appellate Court, however, affirmed the decision of the Agrarian Court. Denied of their motions for reconsideration, petitioners- spouses instituted the present petition for review. We find the appeal to be impressed with merits. 1. Prior to the enactment of the Agricultural Land Reform Code RA 3844), no right of preference in the sale of the land under cultivation was enjoyed by the tenant-farmer. The absence of this right freely opened the way to the landlords to ease out their tenants from the land by ostensible conveyance of said land to another tenant who, in turn, sues for the ejectment of the first tenant on ground of personal cultivation. While many of these sales were simulated, the tenant is oftenly evicted from the land because of the formal transfer of ownership in the land.1 On August 8, 1963, the Agricultural Land Reform Code was passed, impressed with the policy of the State, among other things, "(t)o establish owner-cultivatorship and the economic family-size farm as the basis of Philippine agriculture; to achieve a dignified existence of the small farmers free from pernicious

institutional restraints and practices; to make the small farmers more independent, self-reliant and responsible citizens, and a source of genuine strength in our democratic society."2 More importantly, a new right was given to the tenants-farmers: the right of pre-emption and redemption. It bolsters their security of tenure and further encourages them to become owner-cultivators.3 Thus, Section II provides: "In case the agricultural lessor decides to sell the landholding, the agricultural lessee shall have the preferential right to buy the same under reasonable terms and conditions. ... The right of pre-emption under this Section may be exercised within one hundred eighty days from notice in writing, which shall be served by the owner on all lessees affected and the Department of Agrarian Reform.. If the agricultural lessee agrees with the terms and conditions of the sale, he must give notice in writing to the agricultural lessor of his intention to exercise his right of pre-emption within the balance of one hundred eighty days' period still available to him, but in any case not less than thirty days. He must either tender payment of, or present a certificate of the land bank that t shall make payment pursuant to section eighty of this Code on the price of the landholding to the agricultural lessor. If the latter refuses to accept such tender or presentment, he may consign it with the court." As protection of this right, Section 12 was inserted: "In case the landholding is sold to a third person without the knowledge of the agricultural lessee, the latter shall have the right to redeem the same at a reasonable price and consideration. ... The right of redemption under this section may be exercised within one hundred eighty days from notice in writing which shall be served by the vendee on all lessees affected and the Department of Agrarian Reform upon the registration of the sale, and shall have priority over any other right of legal redemption. The redemption price shall be the reasonable price of the land at the time of the sale. 4In the precedential case of Hidalgo v. Hidalgo, 5 this right was held applicable to both leasehold tenants and sharetenants. Presently, We are faced with an intricate question: is this right of redemption available to tenants in sugar and coconut lands? We answer yes. Among those exempted from the automatic conversion to agricultural leasehold upon the effectivity of the Agricultural Land Reform Code in 1963 or even after its amendments (Code of Agrarian Reforms) are sugar lands. Section 4 thereof states: Agricultural share tenancy throughout the country, as herein defined, is hereby declared contrary to public policy and shall be automatically converted to agricultural leasehold upon the effectivity of this section. ... Provided, That in order not to jeopardize international commitments, lands devoted to crops covered by marketing allotments shall be made the subject of a separate proclamation by the President upon recommendation of' the department head that adequate provisions, such as the organization of cooperatives marketing agreement, or similar other workable arrangements, have been made to insure efficient management on all matters requiring synchronization of the agricultural with the processing phases of such crops ..." Sugar is, of course, one crop covered by marketing allotments. In other words this section recognizes sharetenancy in sugar lands until after a special proclamation is made, which proclamation shall have the same effect of an executive proclamation of the operation of the Department of Agrarian Reform in any region or locality; the share tenants in the lands affected will become agricultural lessees at the beginning of the agricultural year next succeeding the year in which the proclamation is made. 6 But, there is nothing readable or even discernible in the law denying to tenants in sugar lands the right of pre-emption and redemption under the Code. The exemption is purely limited to the tenancy system; it does not exclude the other rights conferred by the Code, such as the right of pre-emption and redemption. In the same manner, coconut lands are exempted from the Code only with respect to the consideration and tenancy system prevailing, implying that in other matters the right of preemption and redemption which does not refer to the consideration of the tenancy the provisions of the Code apply. Thus, Section 35 states: "Notwithstanding the provisions of the preceding Sections, in the case of fishponds, saltbeds and lands principally planted to citrus, coconuts, cacao, coffee, durian, and other similar permanent trees at the time of the approval of this Code, the consideration as well as the tenancy system prevailing, shall be governed by the provisions of Republic Act Numbered Eleven Hundred and Ninety-Nine, as amended."

It is to be noted that under the new Constitution, property ownership is impressed with social function. Property use must not only be for the benefit of the owner but of society as well. The State, in the promotion of social justice, may "regulate the acquisition, ownership, use, enjoyment and disposition of private property, and equitably diffuse property ... ownership and profits." 7 One governmental policy of recent date project emancipation of tenants from the bondage of the soil and the transfer to them of the ownership of the land they till. This is Presidential Decree No. 27 of October 21, 1972, ordaining that all tenant farmers "of private agricultural lands devoted to rice and corn under a system of sharecrop or lease tenancy whether classified as landed estates or not shall be deemed "owner of a portion constituting a family-size farm of five (5) hectares if not irrigated and three (3) hectares if irrigated." 8 2. Nevertheless, while the Code secures to the tenant-farmer this right of redemption, in particular, the exercise thereof must be in accordance with law in order to be valid. "The timely exercise of the right of legal redemption," said the Court in Basbas v. Entena.9 "requires either tender of the price or valid consignation thereof." The statutory periods within which the right must be exercised "would be rendered meaningless and of easy evasion unless the redemptioner is required to make an actual tender in good faith of what he believed to be reasonable price of the land sought to be redeemed." "The existence of the right of redemption operates to depress the market value of the land until the period expires, and to render that period indefinite by permitting the tenant to file a suit for redemption, with either party unable to foresee when final judgment will terminate the action, would render nugatory the period of two years (180 days under the new law) fixed by the statute for making the redemption and virtually paralyze any efforts of the landowner to realize the value of his land. No buyer can be expected to acquire it without any certainty as to the amount for which least his investment in case of redemption. In the meantime, the landowner's needs and obligations cannot be met. It is doubtful if any such result was intended by the statute, absent clear wording to that effect."10 Bona fide redemption necessarily imports a seasonable and valid tender of the entire repurchase price. The right of a redemptioner to pay a "reasonable price" does not excuse him from the duty to make proper tender of the price that can be honestly deemed reasonable under the circumstances, without prejudice to final arbitration by the courts. "It is not difficult to discern why the redemption price should either be fully offered in legal tender or else validly consigned in court. Only by such means can the buyer become certain that the offer to redeem is one made seriously and in good faith. A buyer cannot be expected to entertain an offer of redemption without attendant evidence that the redemptioner can, and is willing to accomplish the repurchase immediately. A different rule would leave the buyer open to harassment by speculators or crackpots as well as to unnecessary prolongation of the redemption period, contrary to the policy of the law. While consignation of the tendered price is not always necessary because legal redemption is not made to discharge a pre-existing debt (Asturias Sugar Central v. Cane Molasses Co., 60 Phil. 253), a valid tender is indispensable, for the reasons already stated. Of course, consignation of the price would remove all controversy as to the redemptioner's ability to pay at the proper time." 11 In the case before Us, neither prior tender nor judicial consignation of the redemption price accompanied the filing of the redemption suit. In fact, the Agrarian court had yet to order, when it rendered its decision on October 10, 1973 (complaint was filed on March 27, 1971), respondenttenant to deposit the amount of M,000.00 as redemption price with the Clerk of Court within fifteen (15) days from receipt of the decision. The absence of such tender or consignation leaves Us, therefore, with no alternative but to declare that respondent-tenant had failed to exercise his right of redemption in accordance with law. 3. Reliance cannot be placed upon the case of Hidalgo v. Hidalgo 12 as excuse for the failure to make the requisite tender or consignation in court, because the Court did not rule therein that prior tender or judicial consignation of the redemption price is not required for the valid exercise of the right of redemption. In that case, the spouse Igmidio Hidalgo and Martina Resales were the share tenants of Policarpio Hidalgo on his 22, 876-square meter agricultural land in Lumil, San

Jose, Batangas, while the spouses Hilario Aguila and Adela Hidalgo were his tenants on a square meter land. Policarpio Hidalgo sold these lands without notifying his tenants: and so, the tenants filed petitions before the Court of Agrarian Relations seeking the redemption of the lands under Section 12 of the Code. The Agrarian Court dismiss the petitioners for the reason that the right of redemption is available to leasehold tenants only but not to share tenants. On review, the Court ruled that while the Agrarian Court "correctly focused on the sole issue of law" whether the right of redemption granted 12 of Republic Act No. 3844 is applicable to share tenants it (Agrarian Court) "arrived at its erroneous conclusion that the right of redemption granted by Section 12 of the Land Reform Code is available to leasehold tenants only but not to share tenants." The Court said that '(t)he Code intended ... to afford the farmers who transitionally continued to be share tenants after its enactment but who inexorably would be agricultural lessees by virtue of the Code's proclaimed abolition of tenancy, the same priority and preferential right as those other share tenants, who upon the enactment of the Code or soon thereafter were earlier converted by fortuitous circumstance into agricultural lessees, to acquire the lands under their cultivation in the event of their voluntary sale by the owner or of their acquisition, by expropriation or otherwise, by the Land Authority." But, the Court did not rule that tender of payment or consignation of the redemption price in court is not a requisite in the valid exercise of the right of redemption. In fact, it said that "(i)n the absence of any provision in the Code as to the manner of and amounts payable on redemption, the pertinent provisions of the Civil Code apply in a suppletory character" which, of course, imposes tender of payment or judicial consignation of the repurchase price as condition for valid redemption. Besides, it is noteworthy that in that case petitioners-tenants' possession of funds and compliance the requirements of redemption were not questioned, the case having been submitted and decided on the sole legal issue of the right of redemption being available to them as share tenants. 4. As a consequence, the Court of Agrarian Relations has jurisdiction over suits for redemption, like the present case, of sugar and coconut lands. Section 154 of the Agricultural Land Reform Code, as amended, states: "The Court of Agrarian Relations shall have original and exclusive jurisdiction over (1) all cases or actions involvingmatters, controversies, disputes, or money claims arising from agrarian relations ..." Since this case involves a matter, controversy or dispute "arising from agrarian relations" whether respondent-tenant on sugar and coconut lands has the right of redemption it is definite that the Agrarian Court has jurisdiction to hear and decide the same. 13 The Court of Agrarian Relations came into being for the enforcement of all laws and regulations governing the relations between capital and labor on all agricultural lands under any system of cultivation with original and exclusive jurisdiction over the entire Philippines, to consider, investigate, decide and settle all questions, matters, controversies, or disputes involving or arising from such relationship. 14 ACCORDINGLY, the appealed decision of the Court of Appeals is hereby reversed and set aside. Respondent Eulogio Gonzales is hereby held not to have validly exercised his right of redemption over his tenanted agricultural land. No costs. SO ORDERED. Teehankee (Chairman), Muoz-Palma, Fernandez and Guerrero, JJ., concur. Makasiar, J., reserved his vote.

Footnotes 1 Montemayor, Labor, Agrarian and Social Legislation, Vol. 3, 1961 ed., at 246.

2 See. 2, Agricultural Land Reform Code, as amended. 3 Op. Cit. 4 Agricultural Land Reform Code, as amended, now known as "Code of Agrairan Reforms." 5 L-2532-28, May 29, 1970, 33 SCRA 105. 6 See Montemayor, Labor Agrarian and Social Legislation, Vol. 3, 1967 ed., at 230. 7 Art. 11, Se 6, 1973 Constitution; Alfanta v. Noe, I,32362, September 19, 1973, 53 SCRA 84. 8 Villanueva v. Court of Appeals, L-37653, June 28, 1974, 57 SCRA 724. 9 L-26255, June 30, 1969, 28 SCRA 669-672. 10 Idem. 11 Conejero v. Court of Appeals, L-21812, April 29, 1966, 16 SCRA 775. 12 L-25327-28, May 29, 1970, 33 SCRA 105. 13 Lacson v. Pineda, L-28523, July 16, 1971, 40 SCRA 30; Ferrer v. Villamor, L33293, Sept. 30, 1974, 60 SCRA 106. 14 Salandanan v.Tizon, L-30290, February 24, 1975, 62 SCRA 388.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-47178 May 16, 1980 ESTRELLA B. ONDOY, petitioner, vs. VIRGILIO IGNACIO, Proprietor M/B LADY ESTRELLITA and/or IMPERIAL FISHING ENTERPRISES and/or THE SECRETARY OF LABOR and/or THE COMPENSATION APPEALS AND REVIEW STAFF, Department of Labor, respondents. Fernardo R. Moreno for petitioner. Feliciano Tumale for private respondents. E. V. Espanol for public respondent.

FERNANDO, C.J.:

t.hq w

The undisputed facts argue strongly for the granting of the claim for compensation filed by petitioner, the mother of one Jose Ondoy, who was drowned while in the employ of private respondent, Virgilio Ignacio. Whatever be the cause for the failure to do so, it is admitted that there was no controversion. Such omission, fatal in character, was sought to be minimized by the filing of a motion to dismissed based on the alleged absence of an employment relationship. What cannot be ignored, however, is that subsequently, in the hearing of such claim private respondent submitted affidavits executed by the chief engineer and oiler of the fishing vessel that the deceased a fisherman, was in that ship, undeniably a member of the working force, but after being invited by friends to a drinking spree, left the vessel, and thereafter was found dead. The referee summarily ignored the affidavit of the chief-mate of respondent employer to the effect "that sometime in October, 1968, while Jose Ondoy, my co-worker, was in the actual performance of his work with said fishing enterprises, he was drowned and died on October 22, 1968. That the deceased died in line of Duty." 1 The hearing officer or referee dismissed the claim for lack of merit. 2 A motion for reconsideration was duly filed, but in an order dated August 29, 1977, the then Secretary of Labor, now Minister Blas F. Ople, denied such motion for reconsideration for lack of merit. 3 Hence this petition for review. 1. In La Mallorca v. Workmen's Compensation Commission, 4 this Court explicitly held that the failure to controvert "is fatal to any defense that petitioner could interpose. So we have held in a host of decisions in compliance with the clear and express language of the Workmen's Compensation Act. Any Assertion to the contrary is doomed to futility. 5 The opinion noted thirty decisions starting from Bachrach Motor Co. v. Workmen's Compensation Commission 6 to Northwest Orient Airlines, Inc. v. Workmen's Compensation Commission. 7 Thereafter, in Regal Auto Works, Inc. v. Workmen's Compensation Commission, 8 such a doctrine was reaffirmed. It was further noted that nine more decisions had been rendered by this Court starting from Republic v. Workmen's Compensation Commission 9 to Abong v. Workmen's Compensation Commission. 10 By the time respondent secretary of Labor denied the motion for reconsideration, a host of decisions that speaks to the same effect had been promulgated.11 It clearly, appears, therefore, that the failure of the referee to grant the award ought to have been remedied and the motion for reconsideration granted. 2. The deceased in this case met his death because of drowning. In Camotes Shipping Corporation v. Otadoy, 12there was not even any direct testimony that the deceased was drowned while in the performance of his duty. All that could be alleged was that he "was lost at sea while in the employ of petitioner. 13 Nonetheless, the award for compensation was sustained. Likewise, the ruling in Caltex (Phil.) Inc. v. Villanueva 14 was cited with approval. Thus: "The fact that the employee was found missing while on board the petitioner's vessel MV 'Caltex Mindanao' became known to the captain of the vessel on 10 October 1956 but it was only on 6 November 1956 when the petitioner transmitted to the respondent Compensation WCC For in No. 3 stating that the employee was 'Lost at sea and presumed dead as of October 10, 1956,' and that it was controverting the respondent's claim. 15 In the present case, there is evidence of the fact of death due to drowning. That was not controverted. Under the circumstances, the failure to grant the claim finds no justification in law. 3. It bears repeating that there is evidence, direct and categorical, to the effect that the deceased was drowned while "in the actual performance of his work" with the shipping enterprise of private respondent. Even without such evidence, the petitioner could have relied on the presumption of compensability under the Act once it is shown that the death or disability arose in the course of employment, with the burden of overthrowing it being cast on the person or entity resisting the claim. Time and time again this Court has stressed such statutory provision. It suffices to mention cases decided from January to April of this year. 16 An appraisal of the counter-affidavits submitted by two

employees of private respondent and thereafter beholden to him to the effect that the deceased left the vessel for a drinking spree certainly cannot meet the standard required to negate the force of the presumption of compensability. 4. Nor is an affirmance of the finding of the referee adverse to the claim warranted because of the doctrine that the findings of facts of an administrative agency must be accorded due weight and consideration. An excerpt from the recent case of Uy v. Workmen's Compensation Commission 17 finds pertinence: "The claim merits scant consideration for this Court is authorized to inquire into the facts when the conclusions are not supported by substantial or credible evidence. 18 5. This Court, in recognizing the right of petitioner to the award, merely adheres to the interpretation uninterruptedly followed by this Court resolving all doubts in favor of the claimant. So it has been since the first leading case of Francisco v. Conching 19 decided a year after the 1935 Constitution took effect. What was said inVictorias Milling Co., Inc. v. Workmen's Compensation Commission 20 is not amiss: "There is need, it seems, even at this late date, for [private respondent] and other employers to be reminded of the high estate accorded the Workmen's Compensation Act in the constitutional scheme of social justice and protection to labor. 21 Further: "No other judicial attitude may be expected in the face of a clearly expressed legislative determination which antedated the constitutionally avowed concern for social justice and protection to labor. It is easily understandable why the judiciary frowns on resort to doctrines, which even if deceptively plausible, would result in frustrating such a national policy. 22 Lastly, to quote from the opinion therein rendered: "To be more specific, the principle of social justice is in this sphere strengthened and vitalized. A realistic view is that expressed in Agustin v. Workmen's Compensation Commission: 'As between a laborer, usually poor and unlettered, and the employer, who has resources to secure able legal advice, the law has reason to demand from the latter stricter compliance. Social justice in these cases is not equality but protection.' 23 WHEREFORE, the petition for review is granted and petitioner Estrelita B. Ondoy is awarded the sum of, P6,000.00 as compensation for the death of her son, Jose Ondoy; P300.00 for burial expenses; and P600.00 as attorney's fees. This decision is immediately executory. Costs against private respondent Virgilio Ignacio. Antonio, Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur. Barredo, J., is on leave.
1w ph1.t

Footnotes

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1 Annex C-1. 2 Petition, par. 8. 3 Ibid, par. 11. 4 L-29315, November 28,1969,30 SCRA 613. 5 Ibid, 619-620. 6 99 Phil. 238 (1956).

7 L-25274, July 29, 1969, 28 SCRA 877. 8 L-29455, September 30, 1975, 67 SCRA 207. 9 L-26763, December 26, 1969,30 SCRA 811. 10 L-32347. December 26, 1973, 54 SCRA 379. 11 Cf. Security Services v. Workmen's Compensation Commission, L-40739, Jan. 30, 1976, 69 SCRA 269; Dinaro v. Workmen's Compensation Commission, L-42457, March 31, 1976, 70 SCRA 292; Talip v. Workmen's Compensation Commission, L42574, May 31, 1976, 71 SCRA 218; Reynaldo v. Republic, L-43108, June 30,1976, 71 SCRA 650; Laude v. Moderna, L-43009, Aug. 31, 1976, 72 SCRA 569; Vda. de Lauron, v. Workmen's Compensation Commission, L-43344; Sept. 29, 1976, 73 SCRA 84; Pros v. Workmen's Compensation Commission, L-43348, Sept. 29, 1976, 73 SCRA 92; Camarillo v. Workmen's Compensation Commission, L-42831, Oct. 21, 1976, 73 SCRA 497; Vallo vs. Workmen's Compensation Commission, L-41816, Oct. 29, 1976, 73 SCRA 623; Dometita v. Workmen's Compensation Commission, L43612, Nov. 29, 1976, 74 SCRA 217; Arzadon v. Workmen's Compensation Commission, L-42404, Dec. 8, 1976, 74 SCRA 238; Delgado Brothers v. Workmen's Compensation Commission, L-42753, Feb. 28, 1977, 75 SCRA 343; People v. Workmen's Compensation Commission, L-42828, Feb. 28, 1977, 75 SCRA 350; Bihag v. Workmen's Compensation Commission, L-43162, Feb. 28, 1977, 75 SCRA 357; Gomez v. Workmen's Compensation Commission, L-43617, Feb. 28, 1977, 75 SCRA 395; Baterna v. Workmen's Compensation Commission, L-43932, Feb. 28, 1977, 75 SCRA 409; Buenaventura v. Workmen's Compensation Commission, L42835, April 22, 1977, 76 SCRA 485, Romero v. Workmen's Compensation Commission, L-42617, June 30, 1977, 77 SCRA 482; Evangelista v. Workmen's Compensation Commission, L-43572, June 30, 1977, 77 SCRA 497. 12 L-27699, October 24, 1970, 35 SCRA 456. 13 Ibid, 456. 14 112 Phil. 897 (1961). 15 Ibid, 905-906. 16 Cf. Guzman v. Workmen's Compensation Commission, G. R. No. L-38911, Jan. 28, 1980; Pajarillo v. Workmen's Compensation Commission, L-42927, Jan. 28, 1980; Villones v. Employees Compensation Commission, L-44301, Feb. 14, 1980; Cabriera v. Workmen's Compensation Commission, L-43363, Feb. 21, 1980; Del Rosario v. Workmen's Compensation Commission, L-44114, Feb. 21, 1980; Macatol v. Workmen's Compensation Commission, L-43127, Feb. .28, 1980; Barga v. Employees Compensation Commission, G. R. No. L-49227, April 25, 1980; Reyes v. Workmen's Compensation Commission, G.R. No. L-46579, April 28, 1980; Guillen v. Workmen's Compensation Commission, G. R. No. L-46692, April 28, 1980; Cenabre v. Employees Compensation Commission, G.R. No. L-46802, April 28, 1980; Avendano v. Employees Compensation Commission, G.R. No. L-48593, April 30, 1980. 17 L-43389, April 28, 1980.

18 Ibid, 15. The opinion of Justice Makasiar cited the following cases: International Factory v. Vda. de Doria and WCC, 109 Phil. 553 (1960); Abong v. WCC, L-3234753, Dec. 26, 1973, 54 SCRA 379; Mulingtapang v. WCC & Marcelo Steel Corporation, L-42483, Dec. 21, 1977, 80 SCRA 610; Yutuc v. Republic of the Philippines, L-43270, Dec. 29, 1978, 87 SCRA 436. 19 63 Phil. 354. 20 L-25665, May 22,1969, 28, SCRA 285. 21 Ibid, 296. 22 Ibid, 297-298. 23 Ibid, 298. Agustin v. Workmen's Compensation Commission is reported in 120 Phil. 846 (1964). The ponente is Justice J.B.L. Reyes. It must be stressed that the present Constitution has expanded and made more specific the principles of social justice and protection to labor. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-47088 July 10, 1981 CONSOLACION DUQUE SALONGA, assisted by her husband WENCESLAO SALONGA, plaintiff-appellant, vs. JULITA B. FARRALES, and THE SHERIFF OF OLONGAPO CITY, defendants-appellees.

FERNANDEZ, J.: This is an appeal certified to this Court by the Court of Appeals 1 from the decision of the Court of First Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo City, in Civil Case No. 1144-0, entitled "Consolacion Duque Salonga, assisted by her husband, Wenceslao Salonga, Plaintiff, versus Julita B. Farrales, and The Sheriff of Olongapo City, Defendants," the dispositive part of which reads: FOR THE REASONS GIVEN, judgment is hereby rendered dismissing plaintiff's complaint, as well as defendants' counterclaim. Costs against plaintiff.
SO ORDERED. 2

The records disclose that on January 2, 1973; the appellant, Consolacion Duque Salonga assisted by her husband, filed a complaint against Julita B. Farrales and the Sheriff of Olongapo City with the

Court of First Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo City, seeking the following relief: WHEREFORE, plaintiff most respectfully prays for the following relief: a) Ordering defendant Julita Farrales to sell to plaintiff the parcel of land containing an area of 156 Square Meters, more or less, where the house of strong materials of plaintiff exists. b) Ordering the defendants not to disturb nor interfere in the peaceful possession or occupation of the land by plaintiff, until a final decision is rendered in this case. c) Ordering defendants jointly and severally to pay costs; and d) Granting plaintiff such other relief conformable to law, justice and equity.
Sta. Rita, Olongapo City, December 28, 1972. 3

that on January 9, 1973, plaintiff-appellant, Salonga filed an urgent petition for the issuance of a writ of preliminary injunction which was duly amended on January 16, 1973, 4 with the following prayer: WHEREFORE, plaintiff assisted by counsel most respectfully prays the Hon. Court the following relief: a) That a restraining order be issued pending resolution of the instant petition for issuance of a Writ of Preliminary Injunction enjoining defendants, particularly the Sheriff of Olongapo City to restrain from enforcing the Writ of Execution issued in connection with the judgment rendered in Civil Case 650 for ejectment in the City Court of Olongapo City; b) That after due hearing of the present amended petition, a Writ of Preliminary Injunction conditioned upon a reasonable bond be issued enjoining the defendants, particularly, the Sheriff of Olongapo City, to restrain from enforcing the Writ of Execution issued in connection with the judgment rendered in Civil Case No. 650 for ejectment in the City Court of Olongapo City, in order to maintain the status of the parties; in order to prevent the infliction of irreparable injury to plaintiff; and in order that whatever judgment may be rendered in this case, may not become moot, academic, illusory and ineffectual, and c) Granting plaintiff such other relief conformable to law, justice and equity; that on January 22, 1973, the court a quo issued an order temporarily restraining the carrying out of the writ of execution issued pursuant to the judgment rendered by the City Court of Olongapo City in Civil Case No. 650, a suit for ejectment filed by defendant-appellee Farrales against five defendants, among whom the herein appellant, Consolacion Duque Salonga; 5 that on January 23, 1973, defendant-appellee Farrales filed a motion to deny the motion for the issuance of a preliminary injunction for being vague and her answer with counterclaim to the complaint; 6 that an opposition to the amended petition for the issuance of a writ of preliminary injunction was also filed by the defendant-appellee Farrales on January 25, 1973; 7 that in an order dated January 20, 1973, the court a quo denied the petition for the issuance of a preliminary injunction and lifted the restraining order issued on January 22, 1973; 8 that plaintiff-appellant moved for reconsideration of the order

denying the motion for issuance of a preliminary injunction on January 5, 1973; 9 which was also denied by the court a quo on February 21, 1973; 10 that after the trial on the merits of Civil Case No. 1144-0, the trial court rendered the judgment under review, dismissing plaintiff's complaint; 11 that on August 13, 1973, the plaintiff, Consolacion Duque Salonga, appealed from the said decision to the Court of Appeals; 12 that on February 25, 1974, the plaintiff-appellant, Consolacion Duque Salonga, filed with the Court of Appeals a motion for the issuance of a writ of preliminary injunction in aid of appeal; 13 that in a resolution dated March 6, 1974, the Court of Appeals denied the said motion on the ground that "the writ of preliminary injunction prayed for being intended to restrain the enforcement of the writ of execution issued in Civil Case No. 650 for Ejectment, which is not involved in this appeal, and there being no justification for the issuance of the writ ... " 14 that on January 13, 1975, the defendant-appellee Julita B. Farrales filed a motion to dismiss the appeal on the ground that the appeal has become moot and academic because "the house of the plaintiffs-appellants, subject matter of this appeal was demolished on October 21, 1974, Annex "A", Sheriff's return and the land where this house was built was delivered to her and she is now the one in possession ... ; 15 that the plaintiffs-appellants having failed to comment on the said motion to dismiss when required by the Court of Appeals in its resolution dated January 16, 1975, 16 the Court of Appeals resolved to submit the motion for decision in a resolution dated April 17, 1975; 17 and that, likewise, the plaintiffs-appellants having failed to show cause why the case should not be submitted for decision without the benefit of appellant's reply brief when required to do so in a Court of Appeals resolution dated May 14, 1975, 18 the Court of Appeals resolved on July 8, 1975 to submit the case for decision without the benefit of appellants' reply brief. 19 In a resolution promulgated on September 15, 1977 the Court of Appeals certified the case to the Supreme Court because the issue raised in the appeal is purely legal. 20 The plaintiffs-appellants assign the following errors: I THE COURT A QUO SERIOUSLY ERRED IN DISMISSING APPELLANTS' COMPLAINT AND IN DENYING SAID APPELLANTS' RELIEF TO PURCHASE FROM DEFENDANT-APPELLEE JULITA FARRALES THE PIECE OF LAND IN QUESTION.
II THE COURT A QUO SERIOUSLY ERRED IN NOT APPLYING TO THE SUIT AT BAR, SECTION 6, UNDER ARTICLE 11 OF THE NEW CONSTITUTION, WHICH CONTROLS, DELIMITS AND REGULATES PROPERTY RIGHTS AND PRIVATE GAINS. 21

The main legal question involved in this appeal is whether or not the court a quo erred in dismissing the complaint for specific performance or the ground that there exists no legally enforceable compromise agreement upon which the defendant-appellee Farrales can be compelled to sell the piece of land in question to plaintiff-appellant, Consolacion Duque Salonga. The facts, as found by the trial court, are: At the pre-trial conference, the parties stipulated on the following facts (1) THAT the personal circumstances of the parties as alleged in the complaint are admitted: (2) THAT defendant Farrales is the titled owner of a parcel of residential land situated in Sta. Rita, Olongapo City, Identity of which is not disputed, formerly acquired by her from one Leoncio Dytuco who, in turn, acquired the same from the Corpuz Family of

which only 361 square meters, more or less, not actually belong to said defendant after portions thereof had been sold to Marciala Zarsadias, Catalino Pascual and Rosanna Quiocson*; (*Per Deed of Absolute Sale, Exhibit B, the vendee is actually Dionisio Quiocson); 3) THAT even prior to the acquisition by defendant Farrales (if the land aforesaid, plaintiff was already in possession as lessee of some 156 square meters thereof, on which she had erected a house, paying rentals thereon first to the original owners and later to defendant Farrales. (4) THAT, sometime prior to November, 1968, defendant Farrales filed an ejectment case for non-payment of rentals against plaintiff and her husband-jointly with other lessees of other portions of the land, to wit, Jorge Carvajal, Catalino Pascua, Marciala Zarsadias, and the spouses Cesar and Rosalina Quiocson - Civil Case No. 650 of the Olongapo City Court, Branch 1, in which, on November 20, 1968, and reiterated on February 4, 1970, a decision was rendered in favor of defendant Farrales and ordering the therein defendants, including plaintiff herein and her husband, to vacate the portion occupied by them and to pay rentals in arrears, attorney's fees and costs; (5) THAT the decision aforesaid was elevated on appeal to the Court of First Instance of Zambales and Olongapo City, Civil Case No. 581-0 thereof, and, in a Decision dated November 11, 1971 of Branch III thereof, the same was affirmed with modification only as to the amount of rentals arrears to be paid; (6) THAT the affirmatory decision of the Court of First Instance aforesaid is now final and executory the records of the case had been remanded to the Court for execution, and the corresponding writ of execution had been issued partially satisfied, as far as plaintiff herein is concerned, by the payment of all rentals in arrears although the removal of said plaintiff's house from the land still remains to be carried out by defendant Sheriff: and
(7) THAT, even before the rendition of the affirmatory decision of the Court of First Instance, by common consent amongst themselves defendant sold to Catalino Pascua, Marciala Zarsadias and the spouses Cesar and Rosalina Quiocson the areas respectly occupied by them; while, with respect to Jorge Carvajal, in a suit thereafter filed between him and defendant Farrales, a compromise. agreement was entered into whereunder said defendant undertook to pay for Carvajal's house on her land, so that the decision aforesaid is now being executed, as far as ejectment is concerned, only against plaintiff herein. (Pre-Trial Order, May 17, 1973, pp. 2-5) 22

The lower court explained its conclusion thus: ... From the very allegations of the complaint, it is clearly admitted 5. That plaintiff herein, in view of the sale to three tenants defendants of the portions of land occupied by each of said three tenant-defendants, by defendant Julita B. Farrales, also offered to purchase from said defendant the area of One Hundred Fifty-Six (156) Square Meters, more or less, where plaintiff's house of strong materials exists, but, defendant Julita B. Farrales, despite the fact that said plaintiff's order to purchase was just, fair and reasonable persistently refused such offer, and instead insisted to execute the judgment rendered in the ejectment case, before the

City Court of Olongapo City, thru the herein defendant Sheriff of Olongapo City, with the sole and only purpose of causing damage and prejudice to the plaintiff (Complaint, p. 3 emphasis supplied). Being a judicial admission, the foregoing binds plaintiff who cannot subsequently take a position contradictory thereto or inconsistent therewith (Section 2, Rule 129, Rules of Court; McDaniel vs. Apacible, 44 Phil. 248 Cunanan vs. Amparo, 80 Phil., 227). Hence, if plaintiff's offer to purchase was, as aforesaid persistently refused by defendant, it is obvious that no meeting of the and, took place and, accordingly, no contract, either to sell or of sale, was ever perfected between them. This is only firmed up even more by plaintiff's admission on the witness stand that no agreement respecting the purchase and sale of the disputed land was finalized because, while defendant Farrales purportedly wanted payment in cash, plaintiff did not have any money for that purpose and neither were negotiations ever had respecting any possible arrangement for payment in installments. On all fours to the case at bar, therefore, is Velasco et al., vs. Court of Appeals, et al, G.R. No. L-31018, June 29, 1973, which was a case for specific performance to compel the therein respondent Magdalena Estate, Inc. to sell a parcel of land to petitioner per an alleged contract of sale in which the Supreme Court ruled: It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they and the respondent still had to meet and agree on how and when the down payment and the installment payments were to be paid. Such being the situation, it cannot, therefore be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale.
Since contracts are enforceable only from the moment of perfection (Articles 1315 and 1475, Civil Code of the Philippines; Pacific Oxygen and Acetylene Co. vs. Central Bank, G.R. No. L-21881, March 1, 1968; Atkins, Kroll and Co., Inc. vs. B. Cua Hian Teck G.R. No. L-9817, January 31, 1958), and there is here no perfected contract at all, it goes without saying that plaintiff has absolutely nothing to enforce against defendant Farrales, and the fact that defendant Farrales previously sold portions of the land to other lessees similarly situated as plaintiff herein, does not change the situation because, as to said other lessees, a perfected contract existed - which is not the case with plaintiff. 23

The trial court found as a fact that no compromise agreement to sell the land in question was ever perfected between the defendant-appellee as vendor and the plaintiffs-appellants as vendees. 24 It is elementary that consent is an essential element for the existence of a contract, and where it is wanting, the contract is non-existent. The essence of consent is the conformity of the parties on the terms of the contract, the acceptance by one of the offer made by the other. The contract to sell is a bilateral contract. Where there is merely an offer by one party, without the acceptance of the other, there is no consent. 25 It appears in this case that the offeree, the defendant-appellee Julita B. Farrales not only did not accept, but rejected the offer of plaintiffs-appellants, spouses Salonga to buy the land in question. There being no consent there is. therefore, no contract to sell to speak of.

Likewise, it must be borne in mind that the alleged compromise agreement to sell the land in question is unenforceable under the Statute of Frauds, 26 and thus, renders all the more ineffective the action for specific performance in the court a quo. Moreover, as correctly found by the trial court, the plaintiffs-appellants, as lessees, are neither builders in good faith nor in bad faith. Their rights are governed not by Article 448 but by Art. 1678 of the New Civil Code. 27 As lessees, they may remove the improvements should the lessor refuse to reimburse them, but the lessee does not have the right to buy the land. 28 Anent the appellants' claim that since the appellee sold to the three (3) other defendants in the ejectment suit the three (3) portions of the land in question occupied by them, it follows that "she must also sell that portion of the land where appellants' residential house was found to appellants" is unmeritorious. The trial court correctly ruled that the fact that defendant-appellee sold portions of the land to the other lessees similarly situated as plaintiffs-appellants Salonga does not change the situation because as to said other lessees, a perfected contract of sale existed which, as previously shown was not the case with the plaintiff. 29 As to the contention that Sec. 6, Article II of the New Constitution is applicable to the case at bar, it must be remembered that social justice cannot be invoked to trample on the rights of property owners who under our Constitution and laws are also entitled to protection. The social justice consecrated in our constitution was not intended to take away rights from a person and give them to another who is not entitled thereto. Evidently, the plea for social justice cannot nullify the law on obligations and contracts, and is, therefore, beyond the power of the Court to grant. There is no showing that the trial court committed any reversible error. WHEREFORE, the appeal is DISMISSED for lack of merit and the judgment appealed from is hereby affirmed, without pronouncement as to costs. SO ORDERED Teehankee (Chairman), Makasiar, Guerrero and Melencio-Herrera, JJ., concur.

Footnotes 1 Rollo, pp. 53-57. Resolution penned by Justice Pacifica de Castro and concurred in by Justices Jose G. Bautista and Nestor B.Alampay. 2 Record on Appeal, pp. 73-87; Rollo, p. 15. 3 Record on Appeal, p. 5; Rollo, p. 15. 4 Idem, pp. 7-23. 5 Idem, p. 27. 6 Idem, pp. 28-33. 7 Idem, p. 33.

8 Idem,pp. 38-40. 9 Idem, pp. 41-52. 10 Idem, pp. 61-65. 11 Idem, pp. 73-87. 12 Idem, pp- 87-91. 13 Rollo, p. 29. 14 Rollo, p. 32. 15 Idem, p.44. 16 Idem, p.48. 17 Idem, p.49. 18 Idem p.50. 19 Idem, p. 51. 20 Rollo, pp. 53-57. 21 Brief for Plaintiff-Appellants, p. 6; Rollo, p. 40. 22 CFI Decision, Record on Appeal, pp. 74-77, Rollo, p. 15, 21 Idem pp. 80-83. 24 Arts. 1319, 1475, New Civil Code. 25 Gamboa v. Gonzales, 17 Phil. 381. 26 Art. 1403, par. (2) Subpar. (e). 27 Art. 1678. If the lessee makes, in good faith, useful improvements which are suitable to the use for which the lease is intended, without altering the form or substance of the property leased, the lessor upon the termination of the lease shall pay the lessee one- half of the value of the improvements at that time. Should the lessor refuse to reimburse said amount, the lessee may remove the improvements, even though the principal thing may suffer damage thereby. He shall not, however, cause any more impairment upon the property leased than is necessary. With regard to ornamental expenses, the lessee shall not be entitled to any reimbursement, but he may remove the ornamental objects, provided no damage is cause to the principal thing, and the lessor does not choose to retain them by paying their value at the time the lease is extinguished.

28 Southwestern University v. Salvador, 90 SCRA 318, 329-330. 29 CFI Decision, Record on Appeal, p. 83; Rollo, p. 15

MCREYNOLDS, J., Opinion of the Court SUPREME COURT OF THE UNITED STATES

262 U.S. 390

Meyer v. State of Nebraska

ERROR TO THE SUPREME. COURT OF THE STATE OF NEBRASKA

No. 325 Argued: February 23, 1923 --- Decided: June 4, 1923

MR. JUSTICE McREYNOLDS delivered the opinion of the Court. Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained [p397] and successfully passed the eighth grade. The information is based upon "An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919, which follows [Laws 1919, c. 249.]: Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language. Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.

Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense. Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval. The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the offense charged and established was "the direct and intentional teaching of the German language as a distinct subject to a child who had not passed the eighth grade," in the parochial school maintained by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons advanced to support the conclusion. The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting foreigners, [p398] who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language

should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state. Pohl v. State, 132 N.E. (Ohio) 20; State v. Bartels,181 N.W. (Ia.) 508. It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them, without reason, from having their children taught foreign languages in school. That argument is not well taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a child is able to devote to study in the confinement of school are limited. It must have ample time for exercise or play. Its daily capacity for learning is comparatively small. A selection of subjects for its education, therefore, from among the many that might be taught, is obviously necessary. The legislature no doubt had in mind the practical operation of the law. The law affects few citizens, except those of foreign lineage.[p399] Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of importance to teach their children foreign languages before such children have reached the eighth grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction upon the citizens generally, which, it appears, was a restriction of no real consequence. The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law." While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common

occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v. Hopkins, 118 U.S. 356;Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children's Hospital, 261 U.S. 525;Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered[p400] with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts. Lawton v. Steele, 152 U.S. 133, 137. The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares, Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by compulsory laws. Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare.

Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment. The challenged statute forbids the teaching in school of any subject except in English; also the teaching of any other language until the pupil has attained and successfully passed the eighth grade, which is not usually accomplished before the age of twelve. The Supreme Court of the State has held that "the so-called ancient or dead languages" are not "within the spirit or the purpose of [p401] the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are within the ban. Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own. It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and "that the English language should be and become the mother tongue of all children reared in this State." It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type, and the public safety is imperiled. That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be

coerced by methods which conflict with the Constitution -- a desirable end cannot be promoted by prohibited means. For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, [p402] nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be. In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution. The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every characteristic of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error. The interference is plain enough, and no adequate reason therefor in time of peace and domestic tranquility has been shown. The power of the State to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the State's power

to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v.[p403] Tanner, supra, p. 594, pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State. As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child's health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child. The judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR. JUSTICE SUTHERLAND, in the next case, at p. 412, infra.]

MCREYNOLDS, J., Opinion of the Court SUPREME COURT OF THE UNITED STATES

268 U.S. 510

Pierce v. Society of Sisters

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON

Argued: March 16, 17, 1925 --- Decided: June 1, 1925

MR. JUSTICE McREYNOLDS delivered the opinion of the Court. These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining [p530] appellants from threatening or attempting to enforce the Compulsory Education Act [*] adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. Jud.Code, 266. They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection. The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides, and failure so to do is declared a misdemeanor. There are [p531]exemptions not specially important here -- for children who are not normal, or who have completed he eighth grade, or who reside at considerable distances from any public school, or whose parents or guardians hold special permits from the County Superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their property. Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal [p532] property. It has long devoted its property and effort to the secular and religious education and care of

children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools, many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee's charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative -- the annual income from primary schools exceeds thirty thousand dollars -and the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute. After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation's business and property will suffer irreparable injury. Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged [p533] in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. The average attendance is one hundred, and the annual fees received for each student amount to some eight hundred dollars. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses

of study conform to the requirements of the State Board of Education. Military instruction and training are also given, under the supervision of an Army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid, and have declared their intention to enforce it. By reason of the statute and threat of enforcement, appellee's business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn. The Academy's bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation's rights guaranteed by the Fourteenth Amendment and that, unless appellants are restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The prayer is for an appropriate injunction. No answer was interposed in either cause, and, after proper notices, they were heard by three judges (Jud.Code 266) on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the [p534] deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property, and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage, and thereby destroy their owners' business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury, and the suits were not premature. No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all

children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare. The inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education. Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [p535] under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendmentguarantees. Accepted in the proper sense, this is true.Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255; Western Turf Association v. Greenberg, 204 U.S. 359, 363. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by

such action. Truax v. Raich,239 U.S. 33; Truax v. Corrigan, 257 U.S. 312; Terrace v. Thompson, 263 U.S. 197. The courts of the State have not construed the Act, and we must determine its meaning for ourselves. Evidently it was expected to have general application, and cannot be construed as though merely intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211 U.S. 45. No argument in favor of such view has been advanced. Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived [p536] of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers.Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229; Duplex Printing Press Co. v. Deering, 254 U.S. 443; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184;Nebraska District v. McKelvie, 262 U.S. 404; Truax v. Corrigan, supra, and cases there cited. The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well recognized function of courts of equity. The decrees below are Affirmed.
*

Be it Enacted by the People of the State of Oregon:

Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows: Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent, guardian or other person in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense; provided, that, in the following cases, children shall not be required to attend public schools: (a) Children Physically Unable -- Any child who is abnormal, subnormal or physically unable to attend school. (b) Children Who Have Completed the Eighth Grade -Any child who has completed the eighth grade, in accordance with the provisions of the state course of study. (c) Distance from school -- Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from public school; provided, however, that, if transportation to and from school is furnished by the school district, this exemption shall not apply. (d) Private Instruction -- Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such

permission shall not extend longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year. If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.
This Act shall take effect and be and remain in force from and after the first day of September, 1926.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-47841 March 21, 1978 FRANCISCO VIRTOUSO, JR., petitioner, vs. MUNICIPAL JUDGE OF MARIVELES, BATAAN, and CHIEF OF POLICE OF MARIVELES, BATAAN,respondents. RESOLUTION

FERNANDO, J.: Petitioner Francisco Virtouso, Jr., who filed an application for the writ of habeas corpus on February 23, 1978, premised his plea for liberty primarily on the ground that the pre examination which led to the issuance of a warrant of arrest against him was a useless formality as respondent Municipal Judge of Mariveles, Bataan, 1 failed to meet the strict standard required by the Constitution to ascertain whether there was a probable cause. 2 He likewise alleged that aside from the constitutional infirmity that tainted the procedure followed in the preliminary examination, the bail imposed was clearly excessive. 3 It was in the amount of Pl6,000.00, the alleged robbery of a TV set being imputed to petitioner. As prayed for, the Court issued a writ of habeas corpus, returnable to it on Wednesday, March 15, 1978. Respondent Judge, in his return filed on March 8, 1978, justified the issuance of the warrant of arrest, alleging that there was no impropriety in the way the preliminary examination was conducted. As to the excessive character of the bail, he asserted that while it was fixed in accordance with the Revised Bail Bond Guide issued by the Executive Judge of Bataan in 1977, he nevertheless reduced the amount to P 8,000.00. Petitioner's counsel and respondent Municipal Judge orally argued the matter on March 15, 1978. In the course of intensive questioning by the members of this Court, especially Justices Barredo, Aquino and Santos, it was ascertained that petitioner is a seventeen-year old minor entitled to the protection and benefits of the Child and Youth Welfare Code. 4 a youthful offender being defined therein as "one who is over nine years but under eighteen years of age at the time of the commission of the offense." 5 As such, he could be provisionally released on recognizance in the discretion of a court. 6 According accordingly, after the hearing, the Court issued the following resolution: "Acting on the verbal petition of counsel for petitioner Francisco Virtouso, Jr., the Court Resolved pursuant to section 191 of Presidential Decree No. 603, petitioner being a 17-year old minor, to [order] the release of the petitioner on the recognizance of his parents Francisco Virtouso, Sr. and Manuela Virtouso and his counsel, Atty. Guillermo B. Bandonil, who, in open court, agreed to act in such capacity, without prejudice to further proceedings in a pending case against petitioner being taken in accordance with law." 7 This Court should, whenever appropriate, give vitality and force to the Youth and Welfare Code, which is an implementation of this specific constitutional mandate: "The State recognizes the vital role of the youth in nation-building and shall promote their physical, intellectual, and social well-being." 8 Thus was the petition resolved, without the need of passing upon the issue of whether or not the procedure by respondent Judge in ascertaining the existence of probable cause was constitutionally deficient. Nonetheless, it must ever be kept in mind by occupants of the bench that they should always be on the alert lest by sloth or indifference or due to the economic or social standing of the alleged offended party, as was intimated in this petition, the rights of an accused, instead of being honored, are disregarded. There is much more importance attached to the immunities of an individual during a period of martial law, which in itself is a creature of the Constitution as a mode of coping with grave emergency situations. It is equally pertinent to state that there should be fealty to the constitutional ban against excessive bail being required. There is relevance to this excerpt from De la Camara v. Enage: 9
Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that that United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest American decision, 'the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment. 10

WHEREFORE, the petition is granted in accordance with the terms of the Resolution of this Court of March 15, 1978 as set forth above. Barredo, Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur.

Footnotes 1 The Chief of Police of Mariveles, Bataan was named as the other respondent. 2 According to Article IV, Section 3 of the Constitution: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produced, and particularly describing the place to be searched, and the persons or things to be seized." 3 According to Article IV, Section 18 of the Constitution: "All persons, except those charged with capital offenses when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive bail shall not be required." 4 Presidential Decree 603 (1974). 5 The Child and Youth Welfare Code, Article 189, as amended by Presidential Decree No. 1179 (1977). 6 Ibid, Article 191. 7 Resolution of March 15,1978. 8 Article II, Section 5 of the Constitution. 9 L-32951-2, September 17, 1971, 41 SCRA 1. 10 Ibid, 8. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents. Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,

engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to (1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a

matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that: CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him

and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of

time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may 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 to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution?

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

The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18

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

deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: ... The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that:

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

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides: . . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . . Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads:

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

27

cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED. Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

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

Separate Opinions

FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed

out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the

relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 110120 March 16, 1994 LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner, vs. COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC, Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City Mayor of Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN,respondents. Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner. The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and the City Government of Caloocan.

ROMERO, J.: The clash between the responsibility of the City Government of Caloocan to dispose off the 350 tons of garbage it collects daily and the growing concern and sensitivity to a pollution-free environment of the residents of Barangay Camarin, Tala Estate, Caloocan City where these tons of garbage are dumped everyday is the hub of this controversy elevated by the protagonists to the Laguna Lake Development Authority (LLDA) for adjudication. The instant case stemmed from an earlier petition filed with this Court by Laguna Lake Development Authority (LLDA for short) docketed as G.R. No. 107542 against the City Government of Caloocan, et al. In the Resolution of November 10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals for appropriate disposition. Docketed therein as CA-G.R. SP No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29, 1993 ruled that the LLDA has no power and authority to issue a cease and desist order enjoining the dumping of garbage in Barangay Camarin, Tala Estate, Caloocan City. The LLDA now seeks, in this petition, a review of the decision of the Court of Appeals. The facts, as disclosed in the records, are undisputed. On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed a letter-complaint 2 with the Laguna Lake Development Authority seeking to stop the operation of the 8.6-hectare open garbage dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects on the health of the residents and the possibility of pollution of the water content of the surrounding area. On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and test sampling of the leachate 3 that seeps from said dumpsite to the nearby creek which is a tributary of the Marilao

River. The LLDA Legal and Technical personnel found that the City Government of Caloocan was maintaining an open dumpsite at the Camarin area without first securing an Environmental Compliance Certificate (ECC) from the Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources, as required under Presidential Decree No. 1586, 4 and clearance from LLDA as required under Republic Act No. 4850, 5 as amended by Presidential Decree No. 813 and Executive Order No. 927, series of 1983. 6 After a public hearing conducted on December 4, 1991, the LLDA, acting on the complaint of Task Force Camarin Dumpsite, found that the water collected from the leachate and the receiving streams could considerably affect the quality, in turn, of the receiving waters since it indicates the presence of bacteria, other than coliform, which may have contaminated the sample during collection or handling. 7 On December 5, 1991, the LLDA issued a Cease and Desist Order 8 ordering the City Government of Caloocan, Metropolitan Manila Authority, their contractors, and other entities, to completely halt, stop and desist from dumping any form or kind of garbage and other waste matter at the Camarin dumpsite. The dumping operation was forthwith stopped by the City Government of Caloocan. However, sometime in August 1992 the dumping operation was resumed after a meeting held in July 1992 among the City Government of Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA at the Office of Environmental Management Bureau Director Rodrigo U. Fuentes failed to settle the problem. After an investigation by its team of legal and technical personnel on August 14, 1992, the LLDA issued another order reiterating the December 5, 1991, order and issued an Alias Cease and Desist Order enjoining the City Government of Caloocan from continuing its dumping operations at the Camarin area. On September 25, 1992, the LLDA, with the assistance of the Philippine National Police, enforced its Alias Cease and Desist Order by prohibiting the entry of all garbage dump trucks into the Tala Estate, Camarin area being utilized as a dumpsite. Pending resolution of its motion for reconsideration earlier filed on September 17, 1992 with the LLDA, the City Government of Caloocan filed with the Regional Trial Court of Caloocan City an action for the declaration of nullity of the cease and desist order with prayer for the issuance of writ of injunction, docketed as Civil Case No. C-15598. In its complaint, the City Government of Caloocan sought to be declared as the sole authority empowered to promote the health and safety and enhance the right of the people in Caloocan City to a balanced ecology within its territorial jurisdiction. 9 On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan City issued a temporary restraining order enjoining the LLDA from enforcing its cease and desist order. Subsequently, the case was raffled to the Regional Trial Court, Branch 126 of Caloocan which, at the time, was presided over by Judge Manuel Jn. Serapio of the Regional Trial Court, Branch 127, the pairing judge of the recently-retired presiding judge. The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground, among others, that under Republic Act No. 3931, as amended by Presidential Decree No. 984, otherwise known as the Pollution Control Law, the cease and desist order issued by it which is the subject matter of the complaint is reviewable both upon the law and the facts of the case by the Court of Appeals and not by the Regional Trial Court. 10

On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil Case No. C15598 with Civil Case No. C-15580, an earlier case filed by the Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio." The LLDA, however, maintained during the trial that the foregoing cases, being independent of each other, should have been treated separately. On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss, issued in the consolidated cases an order 11 denying LLDA's motion to dismiss and granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent and all persons acting for and on its behalf, from enforcing or implementing its cease and desist order which prevents plaintiff City of Caloocan from dumping garbage at the Camarin dumpsite during the pendency of this case and/or until further orders of the court. On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and injunction with prayer for restraining order with the Supreme Court, docketed as G.R. No. 107542, seeking to nullify the aforesaid order dated October 16, 1992 issued by the Regional Trial Court, Branch 127 of Caloocan City denying its motion to dismiss. The Court, acting on the petition, issued a Resolution 12 on November 10, 1992 referring the case to the Court of Appeals for proper disposition and at the same time, without giving due course to the petition, required the respondents to comment on the petition and file the same with the Court of Appeals within ten (10) days from notice. In the meantime, the Court issued a temporary restraining order, effective immediately and continuing until further orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio, Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease and desist from exercising jurisdiction over the case for declaration of nullity of the cease and desist order issued by the Laguna Lake Development Authority (LLDA); and (2) City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City. Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on November 12, 1992 a motion for reconsideration and/or to quash/recall the temporary restraining order and an urgent motion for reconsideration alleging that ". . . in view of the calamitous situation that would arise if the respondent city government fails to collect 350 tons of garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue be resolved with dispatch or with sufficient leeway to allow the respondents to find alternative solutions to this garbage problem." On November 17, 1992, the Court issued a Resolution 13 directing the Court of Appeals to immediately set the case for hearing for the purpose of determining whether or not the temporary restraining order issued by the Court should be lifted and what conditions, if any, may be required if it is to be so lifted or whether the restraining order should be maintained or converted into a preliminary injunction. The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, the General Manager of LLDA, the Secretary of DENR or his duly authorized representative and the Secretary of DILG or his duly authorized representative were required to appear. It was agreed at the conference that the LLDA had until December 15, 1992 to finish its study and review of respondent's technical plan with respect to the dumping of its garbage and in the event of a rejection of respondent's technical plan or a failure of settlement, the parties will submit within 10 days from notice their respective memoranda on the merits of the case, after which the petition shall

be deemed submitted for resolution.15 Notwithstanding such efforts, the parties failed to settle the dispute. On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the Regional Trial Court has no jurisdiction on appeal to try, hear and decide the action for annulment of LLDA's cease and desist order, including the issuance of a temporary restraining order and preliminary injunction in relation thereto, since appeal therefrom is within the exclusive and appellate jurisdiction of the Court of Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake Development Authority has no power and authority to issue a cease and desist order under its enabling law, Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983. The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary injunction issued in the said case was set aside; the cease and desist order of LLDA was likewise set aside and the temporary restraining order enjoining the City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City was lifted, subject, however, to the condition that any future dumping of garbage in said area, shall be in conformity with the procedure and protective works contained in the proposal attached to the records of this case and found on pages 152-160 of the Rollo, which was thereby adopted by reference and made an integral part of the decision, until the corresponding restraining and/or injunctive relief is granted by the proper Court upon LLDA's institution of the necessary legal proceedings. Hence, the Laguna Lake Development Authority filed the instant petition for review on certiorari, now docketed as G.R. No. 110120, with prayer that the temporary restraining order lifted by the Court of Appeals be re-issued until after final determination by this Court of the issue on the proper interpretation of the powers and authority of the LLDA under its enabling law. On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective as of this date and containing until otherwise ordered by the Court. It is significant to note that while both parties in this case agree on the need to protect the environment and to maintain the ecological balance of the surrounding areas of the Camarin open dumpsite, the question as to which agency can lawfully exercise jurisdiction over the matter remains highly open to question. The City Government of Caloocan claims that it is within its power, as a local government unit, pursuant to the general welfare provision of the Local Government Code, 17 to determine the effects of the operation of the dumpsite on the ecological balance and to see that such balance is maintained. On the basis of said contention, it questioned, from the inception of the dispute before the Regional Trial Court of Caloocan City, the power and authority of the LLDA to issue a cease and desist order enjoining the dumping of garbage in the Barangay Camarin over which the City Government of Caloocan has territorial jurisdiction. The Court of Appeals sustained the position of the City of Caloocan on the theory that Section 7 of Presidential Decree No. 984, otherwise known as the Pollution Control law, authorizing the defunct National Pollution Control Commission to issue an ex-parte cease and desist order was not incorporated in Presidential Decree No. 813 nor in Executive Order No. 927, series of 1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No. 4850, as amended, the LLDA is instead required "to institute the necessary legal proceeding against any

person who shall commence to implement or continue implementation of any project, plan or program within the Laguna de Bay region without previous clearance from the Authority." The LLDA now assails, in this partition for review, the abovementioned ruling of the Court of Appeals, contending that, as an administrative agency which was granted regulatory and adjudicatory powers and functions by Republic Act No. 4850 and its amendatory laws, Presidential Decree No. 813 and Executive Order No. 927, series of 1983, it is invested with the power and authority to issue a cease and desist order pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series of 1983 which provides, thus: Sec. 4. Additional Powers and Functions. The authority shall have the following powers and functions: xxx xxx xxx (c) Issue orders or decisions to compel compliance with the provisions of this Executive Order and its implementing rules and regulations only after proper notice and hearing. (d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and the time within which such discontinuance must be accomplished. (e) Issue, renew, or deny permits, under such conditions as it may determine to be reasonable, for the prevention and abatement of pollution, for the discharge of sewage, industrial waste, or for the installation or operation of sewage works and industrial disposal system or parts thereof. (f) After due notice and hearing, the Authority may also revoke, suspend or modify any permit issued under this Order whenever the same is necessary to prevent or abate pollution. (g) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for the purpose of enforcing this Executive Order and its implementing rules and regulations and the orders and decisions of the Authority. The LLDA claims that the appellate court deliberately suppressed and totally disregarded the above provisions of Executive Order No. 927, series of 1983, which granted administrative quasi-judicial functions to LLDA on pollution abatement cases. In light of the relevant environmental protection laws cited which are applicable in this case, and the corresponding overlapping jurisdiction of government agencies implementing these laws, the resolution of the issue of whether or not the LLDA has the authority and power to issue an order which, in its nature and effect was injunctive, necessarily requires a determination of the threshold question: Does the Laguna Lake Development Authority, under its Charter and its amendatory laws, have the authority to entertain the complaint against the dumping of garbage in the open dumpsite in Barangay Camarin authorized by the City Government of Caloocan which is allegedly endangering the health, safety, and welfare of the residents therein and the sanitation and quality of the water in the area brought about by exposure to pollution caused by such open garbage dumpsite? The matter of determining whether there is such pollution of the environment that requires control, if not prohibition, of the operation of a business establishment is essentially addressed to the

Environmental Management Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive Order No. 192, series of 1987, 18 has assumed the powers and functions of the defunct National Pollution Control Commission created under Republic Act No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now assumes the powers and functions of the National Pollution Control Commission with respect to adjudication of pollution cases. 19 As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB), except in cases where the special law provides for another forum. It must be recognized in this regard that the LLDA, as a specialized administrative agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to carry out and make effective the declared national policy 20 of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances, deterioration and pollution. Under such a broad grant and power and authority, the LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the aforementioned declared policy, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs, and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises where such plans, programs and/or projects are related to those of the LLDA for the development of the region. 22 In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed its letter-complaint before the LLDA, the latter's jurisdiction under its charter was validly invoked by complainant on the basis of its allegation that the open dumpsite project of the City Government of Caloocan in Barangay Camarin was undertaken without a clearance from the LLDA, as required under Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813 and Executive Order No. 927. While there is also an allegation that the said project was without an Environmental Compliance Certificate from the Environmental Management Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over this case was recognized by the Environmental Management Bureau of the DENR when the latter acted as intermediary at the meeting among the representatives of the City Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss the possibility of re-opening the open dumpsite. Having thus resolved the threshold question, the inquiry then narrows down to the following issue: Does the LLDA have the power and authority to issue a "cease and desist" order under Republic Act No. 4850 and its amendatory laws, on the basis of the facts presented in this case, enjoining the dumping of garbage in Tala Estate, Barangay Camarin, Caloocan City. The irresistible answer is in the affirmative. The cease and desist order issued by the LLDA requiring the City Government of Caloocan to stop dumping its garbage in the Camarin open dumpsite found by the LLDA to have been done in violation of Republic Act No. 4850, as amended, and other relevant environment laws, 23 cannot be stamped as an unauthorized exercise by the LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter or modify order requiring the discontinuance or pollution." 24 (Emphasis supplied) Section 4, par. (d) explicitly authorizes the LLDA to makewhatever order may be necessary in the exercise of its jurisdiction.

To be sure, the LLDA was not expressly conferred the power "to issue and ex-parte cease and desist order" in a language, as suggested by the City Government of Caloocan, similar to the express grant to the defunct National Pollution Control Commission under Section 7 of P.D. No. 984 which, admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to draw therefrom the conclusion that there is a denial of the power to issue the order in question when the power "to make, alter or modify orders requiring the discontinuance of pollution" is expressly and clearly bestowed upon the LLDA by Executive Order No. 927, series of 1983. Assuming arguendo that the authority to issue a "cease and desist order" were not expressly conferred by law, there is jurisprudence enough to the effect that the rule granting such authority need not necessarily be express.25 While it is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers. 26 In the exercise, therefore, of its express powers under its charter as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region, the authority of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless" paper agency. In this connection, it must be noted that in Pollution Adjudication Board v. Court of Appeals, et al., 27 the Court ruled that the Pollution Adjudication Board (PAB) has the power to issue an exparte cease and desist order when there is prima facie evidence of an establishment exceeding the allowable standards set by the anti-pollution laws of the country. The ponente, Associate Justice Florentino P. Feliciano, declared: Ex parte cease and desist orders are permitted by law and regulations in situations like that here presented precisely because stopping the continuous discharge of pollutive and untreated effluents into the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such orders has run its full course, including multiple and sequential appeals such as those which Solar has taken, which of course may take several years. The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that pervasive, sovereign power to protect the safety, health, and general welfare and comfort of the public, as well as the protection of plant and animal life, commonly designated as the police power. It is a constitutional commonplace that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved, through the exercise of police power. . . . The immediate response to the demands of "the necessities of protecting vital public interests" gives vitality to the statement on ecology embodied in the Declaration of Principles and State Policies or the 1987 Constitution. Article II, Section 16 which provides: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. As a constitutionally guaranteed right of every person, it carries the correlative duty of nonimpairment. This is but in consonance with the declared policy of the state "to protect and promote the right to health of the people and instill health consciousness among them." 28 It is to be borne in mind that the Philippines is party to the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize health as a fundamental human right. 29

The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter of procedure under the circumstances of the case, is a proper exercise of its power and authority under its charter and its amendatory laws. Had the cease and desist order issued by the LLDA been complied with by the City Government of Caloocan as it did in the first instance, no further legal steps would have been necessary. The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon the LLDA the means of directly enforcing such orders, has provided under its Section 4 (d) the power to institute "necessary legal proceeding against any person who shall commence to implement or continue implementation of any project, plan or program within the Laguna de Bay region without previous clearance from the LLDA." Clearly, said provision was designed to invest the LLDA with sufficiently broad powers in the regulation of all projects initiated in the Laguna Lake region, whether by the government or the private sector, insofar as the implementation of these projects is concerned. It was meant to deal with cases which might possibly arise where decisions or orders issued pursuant to the exercise of such broad powers may not be obeyed, resulting in the thwarting of its laudabe objective. To meet such contingencies, then the writs of mandamus and injunction which are beyond the power of the LLDA to issue, may be sought from the proper courts. Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake region and its surrounding provinces, cities and towns are concerned, the Court will not dwell further on the related issues raised which are more appropriately addressed to an administrative agency with the special knowledge and expertise of the LLDA. WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the City Government of Caloocan from dumping their garbage at the Tala Estate, Barangay Camarin, Caloocan City is hereby made permanent. SO ORDERED. Feliciano, Bidin, Melo and Vitug, JJ., concur.

#Footnotes

1 Jorge S. Imperial, J., ponente, Vicente V. Mendoza and Quirino D. Abad Santos, Jr., JJ., concurring. 2 Annex "C", Petition, G.R. No. 107542, Rollo, pp. 47-51. 3 Webster's Third International Dictionary (1986) defines "leachate" as the liquid that has percolated through soil or other medium. 4 Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes (June 11, 1978).

5 An Act Creating The Laguna Lake Development Authority, Prescribing Its Powers, Functions and Duties, Providing Funds Therefor, And For Other Purposes (July 18, 1966). 6 Annex "D", Petition, G.R. No. 107542, Rollo, pp. 52-54. 7 Ibid. 8 Annex "G", Petition, G.R. No. 107542, Rollo, pp. 58-63. 9 Annex "M", Petition, G.R. No. 107542, Rollo, pp. 77-81. 10 Annex "O", Petition, G.R. No. 107542, Rollo, pp. 83-90. 11 Annex "A", Petition, G.R. No. 107542, Rollo, pp. 29-37. 12 G.R. No. 107542, Rollo, pp. 93-95. 13 G.R. No. 107542, Rollo, pp. 98-99. 14 Ibid, p. 97. 15 G.R. No. 107542, Rollo, pp. 129-130. 16 G.R. No. 110120, Rollo, p. 70. 17 Section 16, Republic Act No. 7160, otherwise known as "The Local Government Code of 1991." 18 Providing For The Reorganization Of The Department Of Environment, Energy And Natural Resources, Renaming It As The Department of Environment and Natural Resources, And For Other Purposes (June 10, 1987). 19 Section 19, Executive Order No. 192, series of 1987. 20 Section 1, Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983. 21 Section 41, par. (4), Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983. 22 Section 4, par. (d), Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983. (Emphasis supplied) 23 Sections 45 and 48, Presidential Decree No. 1152, otherwise known as Philippine Environment Code which requires that solid waste disposal shall be by sanitary landfill, incineration, composting and other methods as may be approved by competent government authority and, that the sites shall conform with existing zoning, land use standards, and pollution control regulations, respectively; Section 4, Presidential Decree No. 1586.

24 Section 4, par. (d), Executive Order No. 927, series of 1983. 25 Motor Transit Co. v. Railroad Com., 189 CAL 573, 209 P 586. 26 Republic v. Court of Appeals, G.R. No. 90482, August 5, 1991, 200 SCRA 266; Guerzon v. Court of Appeals, et al. G.R. No. 77707, August 8, 1988, 164 SCRA 182. 27 G.R. No. 93891, March 11, 1991, 195 SCRA 112. 28 Art. II, Section 15, 1987 Constitution. 29 Record of the Constitutional Commission, Proceedings and Debates, Vol. III, p. 119. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 92024 November 9, 1990 CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner, vs. THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION, respondents. Abraham C. La Vina for petitioner. Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation. Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum Corporation.

GUTIERREZ, JR., J.: This is a petition to annul and set aside the decision of the Board of Investments (BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the proposed petrochemical plant from Bataan to Batangas and the shift of feedstock for that plant from naphtha only to naphtha and/or liquefied petroleum gas (LPG). This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T. Garcia v. the Board of Investments", September 7, 1989, where this Court issued a decision, ordering the BOI as follows: WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical

manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information, and (3) to set for hearing the petitioner's opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOI, notice of which should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. No costs. (Rollo, pages 450-451) However, acting on the petitioner's motion for partial reconsideration asking that we rule on the import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of plant site, in the light of the provisions of the Constitution and the Omnibus Investments Code of 1987, this Court on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not provide that the Limay site should be the only petrochemical zone in the country, nor prohibit the establishment of a petrochemical plant elsewhere in the country, that the establishment of a petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803. Our resolution skirted the issue of whether the investor given the initial inducements and other circumstances surrounding its first choice of plant site may change it simply because it has the final choice on the matter. The Court merely ruled that the petitioner appears to have lost interest in the case by his failure to appear at the hearing that was set by the BOI after receipt of the decision, so he may be deemed to have waived the fruit of the judgment. On this ground, the motion for partial reconsideration was denied. A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve the basic issue of whether or not the foreign investor has the right of final choice of plant site; that the non-attendance of the petitioner at the hearing was because the decision was not yet final and executory; and that the petitioner had not therefor waived the right to a hearing before the BOI. In the Court's resolution dated January 17, 1990, we stated: Does the investor have a "right of final choice" of plant site? Neither under the 1987 Constitution nor in the Omnibus Investments Code is there such a 'right of final choice.' In the first place, the investor's choice is subject to processing and approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments Code). By submitting its application and amended application to the BOI for approval, the investor recognizes the sovereign prerogative of our Government, through the BOI, to approve or disapprove the same after determining whether its proposed project will be feasible, desirable and beneficial to our country. By asking that his opposition to the LPC's amended application be heard by the BOI, the petitioner likewise acknowledges that the BOI, not the investor, has the last word or the "final choice" on the matter. Secondly, as this case has shown, even a choice that had been approved by the BOI may not be 'final', for supervening circumstances and changes in the conditions of a place may dictate a corresponding change in the choice of plant site in order that the project will not fail. After all, our country will benefit only when a project succeeds, not when it fails. (Rollo, pp. 538-539)

Nevertheless, the motion for reconsideration of the petitioner was denied. A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted to grant the motion for reconsideration stating that the hearing set by the BOI was premature as the decision of the Court was not yet final and executory; that as contended by the petitioner the Court must first rule on whether or not the investor has the right of final choice of plant site for if the ruling is in the affirmative, the hearing would be a useless exercise; that in the October 19, 1989 resolution, the Court while upholding validity of the transfer of the plant site did not rule on the issue of who has the final choice; that they agree with the observation of the majority that "the investor has no final choice either under the 1987 Constitution or in the Omnibus Investments Code and that it is the BOI who decides for the government" and that the plea of the petitioner should be granted to give him the chance to show the justness of his claim and to enable the BOI to give a second hard look at the matter. Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17, 1990 in G.R. No. 88637 that the investor has no right of final choice under the 1987 Constitution and the Omnibus Investments Code. Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain located in Lamao, Limay, Bataan were reserved for the Petrochemical Industrial Zone under the administration, management, and ownership of the Philippine National Oil Company (PNOC). The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at Bataan. It produces 60% of the national output of naphtha. Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its application specified Bataan as the plant site. One of the terms and conditions for registration of the project was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its petrochemical plant. The petrochemical plant was to be a joint venture with PNOC. BPC was issued a certificate of registration on February 24, 1988 by BOI. BPC was given pioneer status and accorded fiscal and other incentives by BOI, like: (1) exemption from taxes on raw materials, (2) repatriation of the entire proceeds of liquidation investments in currency originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of earnings on investments. As additional incentive, the House of Representatives approved a bill introduced by the petitioner eliminating the 48%ad valorem tax on naphtha if and when it is used as raw materials in the petrochemical plant. (G.R. No. 88637, September 7, 1989, pp. 2-3. Rollo, pp. 441-442) However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989 advising him of BPC's desire to amend the original registration certification of its project by changing the job site from Limay, Bataan, to Batangas. The reason adduced for the transfer was the insurgency and unstable labor situation, and the presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by the Philippine Shell Corporation. The petitioner vigorously opposed the proposal and no less than President Aquino expressed her preference that the plant be established in Bataan in a conference with the Taiwanese investors, the Secretary of National Defense and The Chief of Staff of the Armed Forces.

Despite speeches in the Senate and House opposing the Transfer of the project to Batangas, BPC filed on April 11, 1989 its request for approval of the amendments. Its application is as follows: "(l) increasing the investment amount from US $220 million to US $320 million; (2) increasing the production capacity of its naphtha cracker, polythylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25) Notwithstanding opposition from any quarters and the request of the petitioner addressed to Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments which was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of BPC's petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.) BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of the Senate asserted that: The BOI has taken a public position preferring Bataan over Batangas as the site of the petrochemical complex, as this would provide a better distribution of industries around the Metro Manila area. ... In advocating the choice of Bataan as the project site for the petrochemical complex, the BOI, however, made it clear, and I would like to repeat this that the BOI made it clear in its view that the BOI or the government for that matter could only recomend as to where the project should be located. The BOI recognizes and respect the principle that the final chouce is still with the proponent who would in the final analysis provide the funding or risk capital for the project. (Petition, P. 13; Annex D to the petition) This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present petition. Section 1, Article VIII of the 1987 Constitution provides: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. There is before us an actual controversy whether the petrochemical plant should remain in Bataan or should be transferred to Batangas, and whether its feedstock originally of naphtha only should be changed to naphtha and/or liquefied petroleum gas as the approved amended application of the BPC, now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical admission of the BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor, national interest notwithstanding. We rule that the Court has a constitutional duty to step into this controversy and determine the paramount issue. We grant the petition. First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why it organized itself into a corporation bearing the name Bataan. There is available 576 hectares

of public land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803. There is no need to buy expensive real estate for the site unlike in the proposed transfer to Batangas. The site is the result of careful study long before any covetous interests intruded into the choice. The site is ideal. It is not unduly constricted and allows for expansion. The respondents have not shown nor reiterated that the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the plant site to Batangas. Certainly, these were taken into account when the firm named itself Bataan Petrochemical Corporation. Moreover, the evidence proves the contrary. Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of the national output of naphtha which can be used as feedstock for the plant in Bataan. It can provide the feedstock requirement of the plant. On the other hand, the country is short of LPG and there is need to import the same for use of the plant in Batangas. The local production thereof by Shell can hardly supply the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from vitally essential projects in order to feed the furnaces of the transferred petrochemical plant. Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem tax. The law was enacted specifically for the petrochemical industry. The policy determination by both Congress and the President is clear. Neither BOI nor a foreign investor should disregard or contravene expressed policy by shifting the feedstock from naphtha to LPG. Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to "regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities." The development of a self-reliant and independent national economy effectively controlled by Filipinos is mandated in Section 19, Article II of the Constitution. In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national economy in consonance with the principles and objectives of economic nationalism" is the set goal of government. Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the project from local sources by way of loan which led to the so-called "petroscam scandal", the capital requirements would be greatly minimized if LPC does not have to buy the land for the project and its feedstock shall be limited to naphtha which is certainly more economical, more readily available than LPG, and does not have to be imported. Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great benefit and advantage of the government which shall have a participation in the management of the project instead of a firm which is a huge multinational corporation. In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing is shown to justify the transfer to Batangas except a near-absolute discretion given by BOI to investors not only to freely choose the site but to transfer it from their own first choice for reasons which remain murky to say the least. And this brings us to a prime consideration which the Court cannot rightly ignore. Section 1, Article XII of the Constitution provides that: xxx xxx xxx

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. xxx xxx xxx Every provision of the Constitution on the national economy and patrimony is infused with the spirit of national interest. The non-alienation of natural resources, the State's full control over the development and utilization of our scarce resources, agreements with foreigners being based on real contributions to the economic growth and general welfare of the country and the regulation of foreign investments in accordance with national goals and priorities are too explicit not to be noticed and understood. A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer of computer chips, where the BOI reasoning may be accorded fuller faith and credit. The petrochemical industry is essential to the national interest. In other ASEAN countries like Indonesia and Malaysia, the government superintends the industry by controlling the upstream or cracker facility. In this particular BPC venture, not only has the Government given unprecedented favors, among them: (1) For an initial authorized capital of only P20 million, the Central Bank gave an eligible relending credit or relending facility worth US $50 million and a debt to swap arrangement for US $30 million or a total accommodation of US $80 million which at current exchange rates is around P2080 million. (2) A major part of the company's capitalization shall not come from foreign sources but from loans, initially a Pl Billion syndicated loan, to be given by both government banks and a consortium of Philippine private banks or in common parlance, a case of 'guiniguisa sa sariling manteca.' (3) Tax exemptions and privileges were given as part of its 'preferred pioneer status.' (4) Loan applications of other Philippine firms will be crowded out of the Asian Development Bank portfolio because of the petrochemical firm's massive loan request. (Taken from the proceedings before the Senate Blue Ribbon Committee). but through its regulatory agency, the BOI, it surrenders even the power to make a company abide by its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice which is undoubtedly in the best interests of the Filipino people. The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the investor all other circumstances to the contrary notwithstanding. No cogent advantage to the government has been shown by this transfer. This is a repudiation of the independent policy of the government expressed in numerous laws and the Constitution to run its own affairs the way it deems best for the national interest.

One can but remember the words of a great Filipino leader who in part said he would not mind having a government run like hell by Filipinos than one subservient to foreign dictation. In this case, it is not even a foreign government but an ordinary investor whom the BOI allows to dictate what we shall do with our heritage. WHEREFORE, the petition is hereby granted. The decision of the respondent Board of Investments approving the amendment of the certificate of registration of the Luzon Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET ASIDE as NULL and VOID. The original certificate of registration of BPC' (now LPC) of February 24, 1988 with Bataan as the plant site and naphtha as the feedstock is, therefore, ordered maintained. SO ORDERED. Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur. Fernan, C.J., Paras, JJ., took no part. Feliciano, J., is on leave.

Separate Opinions

GRIO-AQUINO, J., dissenting Opinion: This is the petitioner's second petition for certiorari and prohibition with application for a temporary restraining order or preliminary injunction against the respondents Board of Investments (BOI), Department of Trade and Industry (DTI), the Luzon Petrochemical Corporation (LPC), formerly Bataan Petrochemical Corporation, and Pilipinas Shell Corporation (SHELL) on the transfer of the LPC petrochemical plant site from Bataan to Batangas. The first case was docketed in this Court as G.R. No. 88637 and was decided on September 7, 1989. Consistent with my opinion in the first case, I vote once more to deny the petition. The petitioner filed this second petition supposedly "upon the authority and strength" of this Court's statement in its Resolution of January 9, 1990 in G.R. No. 88637 that the foreign investor (LPC) does not have a right of final choice of plant site because its choice is subject to approval or disapproval by the BOI (p. 3, Rollo). Ergo, the BOI has the "final choice." Petitioner contends that since the BOI had earlier approved Bataan as the plant site of the LPG petrochemical complex, and of "naphtha only" as the feedstock, that approval was "final" and may not be changed. Hence, the BOI allegedly abused its discretion: (1) in approving the transfer of the LPC's plant site from Bataan to Batangas (in spite of the BOI's initial preference for Bataan) "upon the false and unlawful thesis that the foreign investor has the right of final choice by plant site" (p. 13, Rollo), and (2) in allowing the LPC to shift feedstock from naphtha only, to naphtha and/or LPG, despite the disadvantages of using LPG. Petitioner prays the Court to annul the BOI's action and prohibit LPC from transferring its plant site to Batangas and shifting feedstock to naphtha and/ or LPG (p. 22, Rollo).

The petition is not well-taken. There is no provision in the 1987 Investments Code prohibiting the amendment of the investor's application for registration of its project, such as, in this case, its plant site, the feedstock to be used, and the capitalization of the project. Neither does the law prohibit the BOI from approving the amended application. Since the investor may amend its application and the BOI may approve or disapprove the amendments, when may the BOI be deemed to have made a "final choice" regarding those aspects of the project which have been changed? Only the BOI or the Chief Executive is competent to answer that question, for the matter of choosing an appropriate site for the investor's project is a political and economic decision which, under our system of separation of powers, only the executive branch, as implementor of policy formulated by the legislature (in this case, the policy of encouraging and inviting foreign investments into our country), is empowered to make. It is not for this Court to determine what is, or should be, the BOI's "final choice" of plant site and feedstock, for, as we said in our decision in G.R. No. 88637: This Court ... does not possess the necessary technology and scientific expertise to detail e whether the transfer of the proposed BPC (now LPC) petrochemical complex from Bataan to Batangas and the change of fuel from 'naphtha only to naphtha and/or LPG' will be best for the project and for our country. This Court is not about to delve into the economics and politics of this case. It is concerned simply with the alleged violation of due process and the alleged extra limitation of power and discretion on the part of the public respondents in approving the transfer of the project to Batangas without giving due notice and an opportunity to be heard to the vocal opponents of that move." (pp. 445-446, Rollo of G.R. No. 88637.) Although we did say in our decision in G.R. No. 88637 that the BOI, not the foreign investor, has the right of "final choice" of plant site for the LPC project, the Court would be overstepping the bounds of its jurisdiction were it to usurp the prerogative of the BOI to make that choice or change it. The petitioner's contention that the BOI abused its discretion in approving the transfer of the LPC plant site to Batangas because the BOI, in effect, yielded to the investor's choice, is not well taken. The record shows that the BOI approved the transfer because "the BOI recognizes the justification given by the proponent of the project (p. 30, Rollo). The fact that the petitioner disagrees with the BOI's decision does not make it wrong. The petitioner's recourse against the BOI's action is by an appeal to the President (Sec. 36, 1987 Investments Code), not to this Court. This Court, in the exercise of its judicial power, may review and annul executive as well as legislative actions when they clash with the Constitution or with existing laws, or when any branch or instrumentality of the Government has acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution) but the Court may not do more than that. It may not make the decisions that the executive should have made nor pass the laws that the legislature should have passed. Not even the much publicized "petroscam" involving the financial arrangements (not the issue in this case) for the LPC project would justify the intervention of this court in a matter that pertains to the exclusive domain of the executive department. The court does not have a panacea for all the ills that afflict our country nor a solution for every problem that besets it. Did the BOI gravely abuse its discretion in approving the LPC's amended application for registration of its petrochemical project to warrant the intervention of this Court? Grave abuse of discretion

implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos vs. Prov. of Tarlac, 67 Phil. 480; Alafriz vs. Nable, 70 Phil. 278). In light of the LPC's justifications for the transfer of its project site and the shift from one kind of feedstock to two, we are not prepared to hold that the BOI's decision to approve the changes was the product of a capricious and arbitrary exercise of judgment on its part, despite the seemingly impressive arguments of the petitioner showing the advantages of establishing the petrochemical plant in Bataan and of using naphtha only as feedstock. We are not prepared to substitute the judgment of the BOI on this matter with one crafted by this Court. With regard to the scandalously liberal financial accommodations that local banks have allegedly agreed to grant to the LPC (the so-called "petroscam") to enable it to raise a major part of its capital requirements from local sources (hence, a betrayal of the people's expectation that foreign investors will bring in foreign exchange to finance their projects in this country) it is significant that the petitioner has not led an outcry for the disapproval and cancellation of the project on this score. Apparently, the petitioner is not seriously disturbed by the moral implications of the "scam" provided the petrochemical plant is set up in Bataan. The decision of the BOI to allow the transfer of the LPC petrochemical project to Batangas and shift feedstock from naphtha only to naphtha and/or LPG, may appear to the petitioner to be extremely unwise and inadvisable, but the Court may not, for that reason annul the BOI's action or prohibit it from acting on a matter that lies within its particular sphere of competence, for the Court is not a judge of the wisdom and soundness of the actions of the two other co-equal branches of the Government, but only of their legality and constitutionality. WHEREFORE, I vote to deny the petition for certiorari and prohibition for lack of merit. Melencio-Herrera, Narvasa and Regalado, JJ., concur. MELENCIO-HERRERA, J., dissenting: Consistent with my dissent in G.R. No. 88637, the first petition, I concur in the dissent herein of Mme. Justice Aquino and merely wish to add that in its Decision, the majority has actually imposed its own views on matters falling within the competence of a policy-making body of the Government. It decided upon the wisdom of the transfer of the site of the proposed project (pp. 8-9); the reasonableness of the feedstock to be used (pp. 8-9); the undesirability of the capitalization aspect of the project (p. 10), and injected its own concept of the national interest as regards the establishment of a basic industry of strategic importance to the country (p. 13). It is true that the judicial power embodied in Article VIII of the 1987 Constitution speaks of the duty of Courts of justice to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. By no means, however, does it vest in the Courts the power to enter the realm of policy considerations under the guise of the commission of grave abuse of discretion. But this is exactly what the majority Decision has resulted in. It has made a sweeping policy determination and has unwittingly transformed itself into what might be termed a "government by the Judiciary," something never intended by the framers of the Constitution when they provided for separation of powers among the three co-equal branches of government and excluded the Judiciary from policy-making.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 78742 July 14, 1989 ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B. ALARCIO, FELIPE A. GUICO, JR., BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T. GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA, REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE, TEODORO B. MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA, FELICISIMA C. ARRESTO, CONSUELO M. MORALES, BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S. FERRER,petitioners, vs. HONORABLE SECRETARY OF AGRARIAN REFORM, respondent. G.R. No. 79310 July 14, 1989 ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS, DENNIS JEREZA, HERMINIGILDO GUSTILO, PAULINO D. TOLENTINO and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias, Negros Occidental, petitioners, vs. JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN REFORM COUNCIL, respondents. G.R. No. 79744 July 14, 1989 INOCENTES PABICO, petitioner, vs. HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, HON. JOKER ARROYO, EXECUTIVE SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs. SALVADOR TALENTO, JAIME ABOGADO, CONRADO AVANCENA and ROBERTO TAAY, respondents. G.R. No. 79777 July 14, 1989 NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners, vs. HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND BANK OF THE PHILIPPINES,respondents.

CRUZ, J.: In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life on his way to Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung his adversary to the ground thinking him dead, but Antaeus rose even stronger to resume their struggle. This happened several times to Hercules' increasing amazement. Finally, as they continued grappling, it dawned on Hercules that Antaeus was the son of Gaea and could never die

as long as any part of his body was touching his Mother Earth. Thus forewarned, Hercules then held Antaeus up in the air, beyond the reach of the sustaining soil, and crushed him to death. Mother Earth. The sustaining soil. The giver of life, without whose invigorating touch even the powerful Antaeus weakened and died. The cases before us are not as fanciful as the foregoing tale. But they also tell of the elemental forces of life and death, of men and women who, like Antaeus need the sustaining strength of the precious earth to stay alive. "Land for the Landless" is a slogan that underscores the acute imbalance in the distribution of this precious resource among our people. But it is more than a slogan. Through the brooding centuries, it has become a battle-cry dramatizing the increasingly urgent demand of the dispossessed among us for a plot of earth as their place in the sun. Recognizing this need, the Constitution in 1935 mandated the policy of social justice to "insure the well-being and economic security of all the people," 1 especially the less privileged. In 1973, the new Constitution affirmed this goal adding specifically that "the State shall regulate the acquisition, ownership, use, enjoyment and disposition of private property and equitably diffuse property ownership and profits." 2 Significantly, there was also the specific injunction to "formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil." 3 The Constitution of 1987 was not to be outdone. Besides echoing these sentiments, it also adopted one whole and separate Article XIII on Social Justice and Human Rights, containing grandiose but undoubtedly sincere provisions for the uplift of the common people. These include a call in the following words for the adoption by the State of an agrarian reform program: SEC. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary landsharing. Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land Reform Code, had already been enacted by the Congress of the Philippines on August 8, 1963, in line with the above-stated principles. This was substantially superseded almost a decade later by P.D. No. 27, which was promulgated on October 21, 1972, along with martial law, to provide for the compulsory acquisition of private lands for distribution among tenant-farmers and to specify maximum retention limits for landowners. The people power revolution of 1986 did not change and indeed even energized the thrust for agrarian reform. Thus, on July 17, 1987, President Corazon C. Aquino issued E.O. No. 228, declaring full land ownership in favor of the beneficiaries of P.D. No. 27 and providing for the valuation of still unvalued lands covered by the decree as well as the manner of their payment. This was followed on July 22, 1987 by Presidential Proclamation No. 131, instituting a comprehensive agrarian reform program (CARP), and E.O. No. 229, providing the mechanics for its implementation.

Subsequently, with its formal organization, the revived Congress of the Philippines took over legislative power from the President and started its own deliberations, including extensive public hearings, on the improvement of the interests of farmers. The result, after almost a year of spirited debate, was the enactment of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988, which President Aquino signed on June 10, 1988. This law, while considerably changing the earlier mentioned enactments, nevertheless gives them suppletory effect insofar as they are not inconsistent with its provisions. 4 The above-captioned cases have been consolidated because they involve common legal questions, including serious challenges to the constitutionality of the several measures mentioned above. They will be the subject of one common discussion and resolution, The different antecedents of each case will require separate treatment, however, and will first be explained hereunder. G.R. No. 79777 Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No. 6657. The subjects of this petition are a 9-hectare riceland worked by four tenants and owned by petitioner Nicolas Manaay and his wife and a 5-hectare riceland worked by four tenants and owned by petitioner Augustin Hermano, Jr. The tenants were declared full owners of these lands by E.O. No. 228 as qualified farmers under P.D. No. 27. The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on grounds inter alia of separation of powers, due process, equal protection and the constitutional limitation that no private property shall be taken for public use without just compensation. They contend that President Aquino usurped legislative power when she promulgated E.O. No. 228. The said measure is invalid also for violation of Article XIII, Section 4, of the Constitution, for failure to provide for retention limits for small landowners. Moreover, it does not conform to Article VI, Section 25(4) and the other requisites of a valid appropriation. In connection with the determination of just compensation, the petitioners argue that the same may be made only by a court of justice and not by the President of the Philippines. They invoke the recent cases of EPZA v. Dulay 5and Manotok v. National Food Authority. 6 Moreover, the just compensation contemplated by the Bill of Rights is payable in money or in cash and not in the form of bonds or other things of value. In considering the rentals as advance payment on the land, the executive order also deprives the petitioners of their property rights as protected by due process. The equal protection clause is also violated because the order places the burden of solving the agrarian problems on the owners only of agricultural lands. No similar obligation is imposed on the owners of other properties. The petitioners also maintain that in declaring the beneficiaries under P.D. No. 27 to be the owners of the lands occupied by them, E.O. No. 228 ignored judicial prerogatives and so violated due process. Worse, the measure would not solve the agrarian problem because even the small farmers are deprived of their lands and the retention rights guaranteed by the Constitution. In his Comment, the Solicitor General stresses that P.D. No. 27 has already been upheld in the earlier cases ofChavez v. Zobel, 7 Gonzales v. Estrella, 8 and Association of Rice and Corn Producers of the Philippines, Inc. v. The National Land Reform Council. 9 The determination of just compensation by the executive authorities conformably to the formula prescribed under the

questioned order is at best initial or preliminary only. It does not foreclose judicial intervention whenever sought or warranted. At any rate, the challenge to the order is premature because no valuation of their property has as yet been made by the Department of Agrarian Reform. The petitioners are also not proper parties because the lands owned by them do not exceed the maximum retention limit of 7 hectares. Replying, the petitioners insist they are proper parties because P.D. No. 27 does not provide for retention limits on tenanted lands and that in any event their petition is a class suit brought in behalf of landowners with landholdings below 24 hectares. They maintain that the determination of just compensation by the administrative authorities is a final ascertainment. As for the cases invoked by the public respondent, the constitutionality of P.D. No. 27 was merely assumed in Chavez, while what was decided in Gonzales was the validity of the imposition of martial law. In the amended petition dated November 22, 1588, it is contended that P.D. No. 27, E.O. Nos. 228 and 229 (except Sections 20 and 21) have been impliedly repealed by R.A. No. 6657. Nevertheless, this statute should itself also be declared unconstitutional because it suffers from substantially the same infirmities as the earlier measures. A petition for intervention was filed with leave of court on June 1, 1988 by Vicente Cruz, owner of a 1. 83- hectare land, who complained that the DAR was insisting on the implementation of P.D. No. 27 and E.O. No. 228 despite a compromise agreement he had reached with his tenant on the payment of rentals. In a subsequent motion dated April 10, 1989, he adopted the allegations in the basic amended petition that the above- mentioned enactments have been impliedly repealed by R.A. No. 6657. G.R. No. 79310 The petitioners herein are landowners and sugar planters in the Victorias Mill District, Victorias, Negros Occidental. Co-petitioner Planters' Committee, Inc. is an organization composed of 1,400 planter-members. This petition seeks to prohibit the implementation of Proc. No. 131 and E.O. No. 229. The petitioners claim that the power to provide for a Comprehensive Agrarian Reform Program as decreed by the Constitution belongs to Congress and not the President. Although they agree that the President could exercise legislative power until the Congress was convened, she could do so only to enact emergency measures during the transition period. At that, even assuming that the interim legislative power of the President was properly exercised, Proc. No. 131 and E.O. No. 229 would still have to be annulled for violating the constitutional provisions on just compensation, due process, and equal protection. They also argue that under Section 2 of Proc. No. 131 which provides: Agrarian Reform Fund.-There is hereby created a special fund, to be known as the Agrarian Reform Fund, an initial amount of FIFTY BILLION PESOS (P50,000,000,000.00) to cover the estimated cost of the Comprehensive Agrarian Reform Program from 1987 to 1992 which shall be sourced from the receipts of the sale of the assets of the Asset Privatization Trust and Receipts of sale of ill-gotten wealth received through the Presidential Commission on Good Government and such other sources as government may deem appropriate. The amounts collected and accruing to this special fund shall be considered automatically appropriated for the purpose authorized in this Proclamation the amount appropriated is in futuro, not in esse. The money needed to cover the cost of the contemplated expropriation has yet to be raised and cannot be appropriated at this time.

Furthermore, they contend that taking must be simultaneous with payment of just compensation as it is traditionally understood, i.e., with money and in full, but no such payment is contemplated in Section 5 of the E.O. No. 229. On the contrary, Section 6, thereof provides that the Land Bank of the Philippines "shall compensate the landowner in an amount to be established by the government, which shall be based on the owner's declaration of current fair market value as provided in Section 4 hereof, but subject to certain controls to be defined and promulgated by the Presidential Agrarian Reform Council." This compensation may not be paid fully in money but in any of several modes that may consist of part cash and part bond, with interest, maturing periodically, or direct payment in cash or bond as may be mutually agreed upon by the beneficiary and the landowner or as may be prescribed or approved by the PARC. The petitioners also argue that in the issuance of the two measures, no effort was made to make a careful study of the sugar planters' situation. There is no tenancy problem in the sugar areas that can justify the application of the CARP to them. To the extent that the sugar planters have been lumped in the same legislation with other farmers, although they are a separate group with problems exclusively their own, their right to equal protection has been violated. A motion for intervention was filed on August 27,1987 by the National Federation of Sugarcane Planters (NASP) which claims a membership of at least 20,000 individual sugar planters all over the country. On September 10, 1987, another motion for intervention was filed, this time by Manuel Barcelona, et al., representing coconut and riceland owners. Both motions were granted by the Court. NASP alleges that President Aquino had no authority to fund the Agrarian Reform Program and that, in any event, the appropriation is invalid because of uncertainty in the amount appropriated. Section 2 of Proc. No. 131 and Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of fifty billion pesos and thus specifies the minimum rather than the maximum authorized amount. This is not allowed. Furthermore, the stated initial amount has not been certified to by the National Treasurer as actually available. Two additional arguments are made by Barcelona, to wit, the failure to establish by clear and convincing evidence the necessity for the exercise of the powers of eminent domain, and the violation of the fundamental right to own property. The petitioners also decry the penalty for non-registration of the lands, which is the expropriation of the said land for an amount equal to the government assessor's valuation of the land for tax purposes. On the other hand, if the landowner declares his own valuation he is unjustly required to immediately pay the corresponding taxes on the land, in violation of the uniformity rule. In his consolidated Comment, the Solicitor General first invokes the presumption of constitutionality in favor of Proc. No. 131 and E.O. No. 229. He also justifies the necessity for the expropriation as explained in the "whereas" clauses of the Proclamation and submits that, contrary to the petitioner's contention, a pilot project to determine the feasibility of CARP and a general survey on the people's opinion thereon are not indispensable prerequisites to its promulgation. On the alleged violation of the equal protection clause, the sugar planters have failed to show that they belong to a different class and should be differently treated. The Comment also suggests the possibility of Congress first distributing public agricultural lands and scheduling the expropriation of private agricultural lands later. From this viewpoint, the petition for prohibition would be premature. The public respondent also points out that the constitutional prohibition is against the payment of public money without the corresponding appropriation. There is no rule that only money already in

existence can be the subject of an appropriation law. Finally, the earmarking of fifty billion pesos as Agrarian Reform Fund, although denominated as an initial amount, is actually the maximum sum appropriated. The word "initial" simply means that additional amounts may be appropriated later when necessary. On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on his own behalf, assailing the constitutionality of E.O. No. 229. In addition to the arguments already raised, Serrano contends that the measure is unconstitutional because: (1) Only public lands should be included in the CARP; (2) E.O. No. 229 embraces more than one subject which is not expressed in the title; (3) The power of the President to legislate was terminated on July 2, 1987; and (4) The appropriation of a P50 billion special fund from the National Treasury did not originate from the House of Representatives. G.R. No. 79744 The petitioner alleges that the then Secretary of Department of Agrarian Reform, in violation of due process and the requirement for just compensation, placed his landholding under the coverage of Operation Land Transfer. Certificates of Land Transfer were subsequently issued to the private respondents, who then refused payment of lease rentals to him. On September 3, 1986, the petitioner protested the erroneous inclusion of his small landholding under Operation Land transfer and asked for the recall and cancellation of the Certificates of Land Transfer in the name of the private respondents. He claims that on December 24, 1986, his petition was denied without hearing. On February 17, 1987, he filed a motion for reconsideration, which had not been acted upon when E.O. Nos. 228 and 229 were issued. These orders rendered his motion moot and academic because they directly effected the transfer of his land to the private respondents. The petitioner now argues that: (1) E.O. Nos. 228 and 229 were invalidly issued by the President of the Philippines. (2) The said executive orders are violative of the constitutional provision that no private property shall be taken without due process or just compensation. (3) The petitioner is denied the right of maximum retention provided for under the 1987 Constitution. The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly before Congress convened is anomalous and arbitrary, besides violating the doctrine of separation of powers. The legislative power granted to the President under the Transitory Provisions refers only to emergency measures that may be promulgated in the proper exercise of the police power. The petitioner also invokes his rights not to be deprived of his property without due process of law and to the retention of his small parcels of riceholding as guaranteed under Article XIII, Section 4 of the Constitution. He likewise argues that, besides denying him just compensation for his land, the provisions of E.O. No. 228 declaring that:

Lease rentals paid to the landowner by the farmer-beneficiary after October 21, 1972 shall be considered as advance payment for the land. is an unconstitutional taking of a vested property right. It is also his contention that the inclusion of even small landowners in the program along with other landowners with lands consisting of seven hectares or more is undemocratic. In his Comment, the Solicitor General submits that the petition is premature because the motion for reconsideration filed with the Minister of Agrarian Reform is still unresolved. As for the validity of the issuance of E.O. Nos. 228 and 229, he argues that they were enacted pursuant to Section 6, Article XVIII of the Transitory Provisions of the 1987 Constitution which reads: The incumbent president shall continue to exercise legislative powers until the first Congress is convened. On the issue of just compensation, his position is that when P.D. No. 27 was promulgated on October 21. 1972, the tenant-farmer of agricultural land was deemed the owner of the land he was tilling. The leasehold rentals paid after that date should therefore be considered amortization payments. In his Reply to the public respondents, the petitioner maintains that the motion he filed was resolved on December 14, 1987. An appeal to the Office of the President would be useless with the promulgation of E.O. Nos. 228 and 229, which in effect sanctioned the validity of the public respondent's acts. G.R. No. 78742 The petitioners in this case invoke the right of retention granted by P.D. No. 27 to owners of rice and corn lands not exceeding seven hectares as long as they are cultivating or intend to cultivate the same. Their respective lands do not exceed the statutory limit but are occupied by tenants who are actually cultivating such lands. According to P.D. No. 316, which was promulgated in implementation of P.D. No. 27: No tenant-farmer in agricultural lands primarily devoted to rice and corn shall be ejected or removed from his farmholding until such time as the respective rights of the tenant- farmers and the landowner shall have been determined in accordance with the rules and regulations implementing P.D. No. 27. The petitioners claim they cannot eject their tenants and so are unable to enjoy their right of retention because the Department of Agrarian Reform has so far not issued the implementing rules required under the above-quoted decree. They therefore ask the Court for a writ of mandamus to compel the respondent to issue the said rules. In his Comment, the public respondent argues that P.D. No. 27 has been amended by LOI 474 removing any right of retention from persons who own other agricultural lands of more than 7 hectares in aggregate area or lands used for residential, commercial, industrial or other purposes from which they derive adequate income for their family. And even assuming that the petitioners do not fall under its terms, the regulations implementing P.D. No. 27 have already been issued, to wit, the Memorandum dated July 10, 1975 (Interim Guidelines on Retention by Small Landowners, with an accompanying Retention Guide Table), Memorandum Circular No. 11 dated April 21, 1978,

(Implementation Guidelines of LOI No. 474), Memorandum Circular No. 18-81 dated December 29,1981 (Clarificatory Guidelines on Coverage of P.D. No. 27 and Retention by Small Landowners), and DAR Administrative Order No. 1, series of 1985 (Providing for a Cut-off Date for Landowners to Apply for Retention and/or to Protest the Coverage of their Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For failure to file the corresponding applications for retention under these measures, the petitioners are now barred from invoking this right. The public respondent also stresses that the petitioners have prematurely initiated this case notwithstanding the pendency of their appeal to the President of the Philippines. Moreover, the issuance of the implementing rules, assuming this has not yet been done, involves the exercise of discretion which cannot be controlled through the writ of mandamus. This is especially true if this function is entrusted, as in this case, to a separate department of the government. In their Reply, the petitioners insist that the above-cited measures are not applicable to them because they do not own more than seven hectares of agricultural land. Moreover, assuming arguendo that the rules were intended to cover them also, the said measures are nevertheless not in force because they have not been published as required by law and the ruling of this Court in Tanada v. Tuvera. 10 As for LOI 474, the same is ineffective for the additional reason that a mere letter of instruction could not have repealed the presidential decree. I Although holding neither purse nor sword and so regarded as the weakest of the three departments of the government, the judiciary is nonetheless vested with the power to annul the acts of either the legislative or the executive or of both when not conformable to the fundamental law. This is the reason for what some quarters call the doctrine of judicial supremacy. Even so, this power is not lightly assumed or readily exercised. The doctrine of separation of powers imposes upon the courts a proper restraint, born of the nature of their functions and of their respect for the other departments, in striking down the acts of the legislative and the executive as unconstitutional. The policy, indeed, is a blend of courtesy and caution. To doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies were made by Congress or the President, or both, to insure that the Constitution would not be breached. In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality, requiring therefor the concurrence of a majority of the members of the Supreme Court who took part in the deliberations and voted on the issue during their session en banc. 11 And as established by judge made doctrine, the Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself. 12 With particular regard to the requirement of proper party as applied in the cases before us, we hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. 13 And even if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, 14 ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were

invoking only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." We have since then applied this exception in many other cases. 15 The other above-mentioned requisites have also been met in the present petitions. In must be stressed that despite the inhibitions pressing upon the Court when confronted with constitutional issues like the ones now before it, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution as God and its conscience give it the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decision. Blandishment is as ineffectual as intimidation. For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the hammer fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or of any public official, betray the people's will as expressed in the Constitution. It need only be added, to borrow again the words of Justice Laurel, that
... when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the Legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. 16

The cases before us categorically raise constitutional questions that this Court must categorically resolve. And so we shall. II We proceed first to the examination of the preliminary issues before resolving the more serious challenges to the constitutionality of the several measures involved in these petitions. The promulgation of P.D. No. 27 by President Marcos in the exercise of his powers under martial law has already been sustained in Gonzales v. Estrella and we find no reason to modify or reverse it on that issue. As for the power of President Aquino to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the same was authorized under Section 6 of the Transitory Provisions of the 1987 Constitution, quoted above. The said measures were issued by President Aquino before July 27, 1987, when the Congress of the Philippines was formally convened and took over legislative power from her. They are not "midnight" enactments intended to pre-empt the legislature because E.O. No. 228 was issued on July 17, 1987, and the other measures, i.e., Proc. No. 131 and E.O. No. 229, were both issued on July 22, 1987. Neither is it correct to say that these measures ceased to be valid when she lost her legislative power for, like any statute, they continue to be in force unless modified or repealed by subsequent law or declared invalid by the courts. A statute does not ipso facto become inoperative simply because of the dissolution of the legislature that enacted it. By the same token, President

Aquino's loss of legislative power did not have the effect of invalidating all the measures enacted by her when and as long as she possessed it. Significantly, the Congress she is alleged to have undercut has not rejected but in fact substantially affirmed the challenged measures and has specifically provided that they shall be suppletory to R.A. No. 6657 whenever not inconsistent with its provisions. 17 Indeed, some portions of the said measures, like the creation of the P50 billion fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of E.O. No. 229, have been incorporated by reference in the CARP Law. 18 That fund, as earlier noted, is itself being questioned on the ground that it does not conform to the requirements of a valid appropriation as specified in the Constitution. Clearly, however, Proc. No. 131 is not an appropriation measure even if it does provide for the creation of said fund, for that is not its principal purpose. An appropriation law is one the primary and specific purpose of which is to authorize the release of public funds from the treasury.19 The creation of the fund is only incidental to the main objective of the proclamation, which is agrarian reform. It should follow that the specific constitutional provisions invoked, to wit, Section 24 and Section 25(4) of Article VI, are not applicable. With particular reference to Section 24, this obviously could not have been complied with for the simple reason that the House of Representatives, which now has the exclusive power to initiate appropriation measures, had not yet been convened when the proclamation was issued. The legislative power was then solely vested in the President of the Philippines, who embodied, as it were, both houses of Congress. The argument of some of the petitioners that Proc. No. 131 and E.O. No. 229 should be invalidated because they do not provide for retention limits as required by Article XIII, Section 4 of the Constitution is no longer tenable. R.A. No. 6657 does provide for such limits now in Section 6 of the law, which in fact is one of its most controversial provisions. This section declares: Retention Limits. Except as otherwise provided in this Act, no person may own or retain, directly or indirectly, any public or private agricultural land, the size of which shall vary according to factors governing a viable family-sized farm, such as commodity produced, terrain, infrastructure, and soil fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, but in no case shall retention by the landowner exceed five (5) hectares. Three (3) hectares may be awarded to each child of the landowner, subject to the following qualifications: (1) that he is at least fifteen (15) years of age; and (2) that he is actually tilling the land or directly managing the farm; Provided, That landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder, further, That original homestead grantees or direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they continue to cultivate said homestead. The argument that E.O. No. 229 violates the constitutional requirement that a bill shall have only one subject, to be expressed in its title, deserves only short attention. It is settled that the title of the bill does not have to be a catalogue of its contents and will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title. 20 The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever name it was called, had the force and effect of law because it came from President Marcos. Such are the ways of despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI

474 could not have repealed P.D. No. 27 because the former was only a letter of instruction. The important thing is that it was issued by President Marcos, whose word was law during that time. But for all their peremptoriness, these issuances from the President Marcos still had to comply with the requirement for publication as this Court held in Tanada v. Tuvera. 21 Hence, unless published in the Official Gazette in accordance with Article 2 of the Civil Code, they could not have any force and effect if they were among those enactments successfully challenged in that case. LOI 474 was published, though, in the Official Gazette dated November 29,1976.) Finally, there is the contention of the public respondent in G.R. No. 78742 that the writ of mandamus cannot issue to compel the performance of a discretionary act, especially by a specific department of the government. That is true as a general proposition but is subject to one important qualification. Correctly and categorically stated, the rule is that mandamus will lie to compel the discharge of the discretionary duty itself but not to control the discretion to be exercised. In other words, mandamus can issue to require action only but not specific action.
Whenever a duty is imposed upon a public official and an unnecessary and unreasonable delay in the exercise of such duty occurs, if it is a clear duty imposed by law, the courts will intervene by the extraordinary legal remedy of mandamus to compel action. If the duty is purely ministerial, the courts will require specific action. If the duty is purely discretionary, the courts by mandamus will require action only. For example, if an inferior court, public official, or board should, for an unreasonable length of time, fail to decide a particular question to the great detriment of all parties concerned, or a court should refuse to take jurisdiction of a cause when the law clearly gave it jurisdiction mandamus will issue, in the first case to require a decision, and in the second to require that jurisdiction be taken of the cause. 22

And while it is true that as a rule the writ will not be proper as long as there is still a plain, speedy and adequate remedy available from the administrative authorities, resort to the courts may still be permitted if the issue raised is a question of law. 23 III There are traditional distinctions between the police power and the power of eminent domain that logically preclude the application of both powers at the same time on the same subject. In the case of City of Baguio v. NAWASA, 24 for example, where a law required the transfer of all municipal waterworks systems to the NAWASA in exchange for its assets of equivalent value, the Court held that the power being exercised was eminent domain because the property involved was wholesome and intended for a public use. Property condemned under the police power is noxious or intended for a noxious purpose, such as a building on the verge of collapse, which should be demolished for the public safety, or obscene materials, which should be destroyed in the interest of public morals. The confiscation of such property is not compensable, unlike the taking of property under the power of expropriation, which requires the payment of just compensation to the owner. In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes laid down the limits of the police power in a famous aphorism: "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." The regulation that went "too far" was a law prohibiting mining which might cause the subsidence of structures for human habitation constructed on the land surface. This was resisted by a coal company which had earlier granted a deed to the land over its mine but reserved all mining rights thereunder, with the grantee assuming all risks and waiving any damage claim. The Court held the law could not be sustained without compensating the grantor. Justice Brandeis filed a lone dissent in which he argued that there was a valid exercise of the police power. He said:

Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The state does not appropriate it or make any use of it. The state merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious as it may because of further changes in local or social conditions the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. Recent trends, however, would indicate not a polarization but a mingling of the police power and the power of eminent domain, with the latter being used as an implement of the former like the power of taxation. The employment of the taxing power to achieve a police purpose has long been accepted. 26 As for the power of expropriation, Prof. John J. Costonis of the University of Illinois College of Law (referring to the earlier case of Euclid v. Ambler Realty Co., 272 US 365, which sustained a zoning law under the police power) makes the following significant remarks:
Euclid, moreover, was decided in an era when judges located the Police and eminent domain powers on different planets. Generally speaking, they viewed eminent domain as encompassing public acquisition of private property for improvements that would be available for public use," literally construed. To the police power, on the other hand, they assigned the less intrusive task of preventing harmful externalities a point reflected in the Euclid opinion's reliance on an analogy to nuisance law to bolster its support of zoning. So long as suppression of a privately authored harm bore a plausible relation to some legitimate "public purpose," the pertinent measure need have afforded no compensation whatever. With the progressive growth of government's involvement in land use, the distance between the two powers has contracted considerably. Today government often employs eminent domain interchangeably with or as a useful complement to the police power-- a trend expressly approved in the Supreme Court's 1954 decision in Berman v. Parker, which broadened the reach of eminent domain's "public use" test to match that of the police power's standard of "public purpose." 27

The Berman case sustained a redevelopment project and the improvement of blighted areas in the District of Columbia as a proper exercise of the police power. On the role of eminent domain in the attainment of this purpose, Justice Douglas declared: If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.
For the power of eminent domain is merely the means to the end. 28

In Penn Central Transportation Co. v. New York City, 29 decided by a 6-3 vote in 1978, the U.S Supreme Court sustained the respondent's Landmarks Preservation Law under which the owners of the Grand Central Terminal had not been allowed to construct a multi-story office building over the Terminal, which had been designated a historic landmark. Preservation of the landmark was held to be a valid objective of the police power. The problem, however, was that the owners of the Terminal would be deprived of the right to use the airspace above it although other landowners in the area

could do so over their respective properties. While insisting that there was here no taking, the Court nonetheless recognized certain compensatory rights accruing to Grand Central Terminal which it said would "undoubtedly mitigate" the loss caused by the regulation. This "fair compensation," as he called it, was explained by Prof. Costonis in this wise: In return for retaining the Terminal site in its pristine landmark status, Penn Central was authorized to transfer to neighboring properties the authorized but unused rights accruing to the site prior to the Terminal's designation as a landmark the rights which would have been exhausted by the 59story building that the city refused to countenance atop the Terminal. Prevailing bulk restrictions on neighboring sites were proportionately relaxed, theoretically enabling Penn Central to recoup its losses at the Terminal site by constructing or selling to others the right to construct larger, hence more profitable buildings on the transferee sites. 30 The cases before us present no knotty complication insofar as the question of compensable taking is concerned. To the extent that the measures under challenge merely prescribe retention limits for landowners, there is an exercise of the police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, it becomes necessary to deprive such owners of whatever lands they may own in excess of the maximum area allowed, there is definitely a taking under the power of eminent domain for which payment of just compensation is imperative. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and the physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer-beneficiary. This is definitely an exercise not of the police power but of the power of eminent domain. Whether as an exercise of the police power or of the power of eminent domain, the several measures before us are challenged as violative of the due process and equal protection clauses. The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground that no retention limits are prescribed has already been discussed and dismissed. It is noted that although they excited many bitter exchanges during the deliberation of the CARP Law in Congress, the retention limits finally agreed upon are, curiously enough, not being questioned in these petitions. We therefore do not discuss them here. The Court will come to the other claimed violations of due process in connection with our examination of the adequacy of just compensation as required under the power of expropriation. The argument of the small farmers that they have been denied equal protection because of the absence of retention limits has also become academic under Section 6 of R.A. No. 6657. Significantly, they too have not questioned the area of such limits. There is also the complaint that they should not be made to share the burden of agrarian reform, an objection also made by the sugar planters on the ground that they belong to a particular class with particular interests of their own. However, no evidence has been submitted to the Court that the requisites of a valid classification have been violated. Classification has been defined as the grouping of persons or things similar to each other in certain particulars and different from each other in these same particulars. 31 To be valid, it must conform to the following requirements: (1) it must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all the members of the class. 32The Court finds that all these requisites have been met by the measures here challenged as arbitrary and discriminatory. Equal protection simply means that all persons or things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed. 33 The petitioners have not shown that they

belong to a different class and entitled to a different treatment. The argument that not only landowners but also owners of other properties must be made to share the burden of implementing land reform must be rejected. There is a substantial distinction between these two classes of owners that is clearly visible except to those who will not see. There is no need to elaborate on this matter. In any event, the Congress is allowed a wide leeway in providing for a valid classification. Its decision is accorded recognition and respect by the courts of justice except only where its discretion is abused to the detriment of the Bill of Rights. It is worth remarking at this juncture that a statute may be sustained under the police power only if there is a concurrence of the lawful subject and the lawful method. Put otherwise, the interests of the public generally as distinguished from those of a particular class require the interference of the State and, no less important, the means employed are reasonably necessary for the attainment of the purpose sought to be achieved and not unduly oppressive upon individuals. 34 As the subject and purpose of agrarian reform have been laid down by the Constitution itself, we may say that the first requirement has been satisfied. What remains to be examined is the validity of the method employed to achieve the constitutional goal. One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a, person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right. That right covers the person's life, his liberty and his property under Section 1 of Article III of the Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which reaffirms the familiar rule that private property shall not be taken for public use without just compensation. This brings us now to the power of eminent domain. IV
Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment of just compensation to the owner. Obviously, there is no need to expropriate where the owner is willing to sell under terms also acceptable to the purchaser, in which case an ordinary deed of sale may be agreed upon by the parties. 35 It is only where the owner is unwilling to sell, or cannot accept the price or other conditions offered by the vendee, that the power of eminent domain will come into play to assert the paramount authority of the State over the interests of the property owner. Private rights must then yield to the irresistible demands of the public interest on the time-honored justification, as in the case of the police power, that the welfare of the people is the supreme law.

But for all its primacy and urgency, the power of expropriation is by no means absolute (as indeed no power is absolute). The limitation is found in the constitutional injunction that "private property shall not be taken for public use without just compensation" and in the abundant jurisprudence that has evolved from the interpretation of this principle. Basically, the requirements for a proper exercise of the power are: (1) public use and (2) just compensation.

Let us dispose first of the argument raised by the petitioners in G.R. No. 79310 that the State should first distribute public agricultural lands in the pursuit of agrarian reform instead of immediately disturbing property rights by forcibly acquiring private agricultural lands. Parenthetically, it is not correct to say that only public agricultural lands may be covered by the CARP as the Constitution calls for "the just distribution of all agricultural lands." In any event, the decision to redistribute private agricultural lands in the manner prescribed by the CARP was made by the legislative and executive departments in the exercise of their discretion. We are not justified in reviewing that discretion in the absence of a clear showing that it has been abused. A becoming courtesy admonishes us to respect the decisions of the political departments when they decide what is known as the political question. As explained by Chief Justice Concepcion in the case of Taada v. Cuenco: 36 The term "political question" connotes what it means in ordinary parlance, namely, a question of policy. It refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. It is true that the concept of the political question has been constricted with the enlargement of judicial power, which now includes the authority of the courts "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 37 Even so, this should not be construed as a license for us to reverse the other departments simply because their views may not coincide with ours. The legislature and the executive have been seen fit, in their wisdom, to include in the CARP the redistribution of private landholdings (even as the distribution of public agricultural lands is first provided for, while also continuing apace under the Public Land Act and other cognate laws). The Court sees no justification to interpose its authority, which we may assert only if we believe that the political decision is not unwise, but illegal. We do not find it to be so. In U.S. v. Chandler-Dunbar Water Power Company, 38 it was held: Congress having determined, as it did by the Act of March 3,1909 that the entire St. Mary's river between the American bank and the international line, as well as all of the upland north of the present ship canal, throughout its entire length, was "necessary for the purpose of navigation of said waters, and the waters connected therewith," that determination is conclusive in condemnation proceedings instituted by the United States under that Act, and there is no room for judicial review of the judgment of Congress ... . As earlier observed, the requirement for public use has already been settled for us by the Constitution itself No less than the 1987 Charter calls for agrarian reform, which is the reason why private agricultural lands are to be taken from their owners, subject to the prescribed maximum retention limits. The purposes specified in P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an elaboration of the constitutional injunction that the State adopt the necessary measures "to encourage and undertake the just distribution of all agricultural lands to enable farmers who are landless to own directly or collectively the lands they till." That public use, as pronounced by the fundamental law itself, must be binding on us.

The second requirement, i.e., the payment of just compensation, needs a longer and more thoughtful examination. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. 39 It has been repeatedly stressed by this Court that the measure is not the taker's gain but the owner's loss. 40 The word "just" is used to intensify the meaning of the word "compensation" to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, ample. 41 It bears repeating that the measures challenged in these petitions contemplate more than a mere regulation of the use of private lands under the police power. We deal here with an actual taking of private agricultural lands that has dispossessed the owners of their property and deprived them of all its beneficial use and enjoyment, to entitle them to the just compensation mandated by the Constitution. As held in Republic of the Philippines v. Castellvi, 42 there is compensable taking when the following conditions concur: (1) the expropriator must enter a private property; (2) the entry must be for more than a momentary period; (3) the entry must be under warrant or color of legal authority; (4) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; and (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. All these requisites are envisioned in the measures before us. Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking possession of the condemned property, as "the compensation is a public charge, the good faith of the public is pledged for its payment, and all the resources of taxation may be employed in raising the amount." 43 Nevertheless, Section 16(e) of the CARP Law provides that: Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. Objection is raised, however, to the manner of fixing the just compensation, which it is claimed is entrusted to the administrative authorities in violation of judicial prerogatives. Specific reference is made to Section 16(d), which provides that in case of the rejection or disregard by the owner of the offer of the government to buy his land... the DAR shall conduct summary administrative proceedings to determine the compensation for the land by requiring the landowner, the LBP and other interested parties to submit evidence as to the just compensation for the land, within fifteen (15) days from the receipt of the notice. After the expiration of the above period, the matter is deemed submitted for decision. The DAR shall decide the case within thirty (30) days after it is submitted for decision. To be sure, the determination of just compensation is a function addressed to the courts of justice and may not be usurped by any other branch or official of the government. EPZA v. Dulay 44 resolved a challenge to several decrees promulgated by President Marcos providing that the just compensation for property under expropriation should be either the assessment of the property by

the government or the sworn valuation thereof by the owner, whichever was lower. In declaring these decrees unconstitutional, the Court held through Mr. Justice Hugo E. Gutierrez, Jr.: The method of ascertaining just compensation under the aforecited decrees constitutes impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a matter which under this Constitution is reserved to it for final determination. Thus, although in an expropriation proceeding the court technically would still have the power to determine the just compensation for the property, following the applicable decrees, its task would be relegated to simply stating the lower value of the property as declared either by the owner or the assessor. As a necessary consequence, it would be useless for the court to appoint commissioners under Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process clause in the taking of private property is seemingly fulfilled since it cannot be said that a judicial proceeding was not had before the actual taking. However, the strict application of the decrees during the proceedings would be nothing short of a mere formality or charade as the court has only to choose between the valuation of the owner and that of the assessor, and its choice is always limited to the lower of the two. The court cannot exercise its discretion or independence in determining what is just or fair. Even a grade school pupil could substitute for the judge insofar as the determination of constitutional just compensation is concerned. xxx In the present petition, we are once again confronted with the same question of whether the courts under P.D. No. 1533, which contains the same provision on just compensation as its predecessor decrees, still have the power and authority to determine just compensation, independent of what is stated by the decree and to this effect, to appoint commissioners for such purpose. This time, we answer in the affirmative. xxx It is violative of due process to deny the owner the opportunity to prove that the valuation in the tax documents is unfair or wrong. And it is repulsive to the basic concepts of justice and fairness to allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of a court promulgated only after expert commissioners have actually viewed the property, after evidence and arguments pro and con have been presented, and after all factors and considerations essential to a fair and just determination have been judiciously evaluated. A reading of the aforecited Section 16(d) will readily show that it does not suffer from the arbitrariness that rendered the challenged decrees constitutionally objectionable. Although the proceedings are described as summary, the landowner and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. But more importantly, the determination of the just compensation by the DAR is not by any means final and conclusive upon the landowner or any other interested party, for Section 16(f) clearly provides: Any party who disagrees with the decision may bring the matter to the court of proper jurisdiction for final determination of just compensation.

The determination made by the DAR is only preliminary unless accepted by all parties concerned. Otherwise, the courts of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. The second and more serious objection to the provisions on just compensation is not as easily resolved. This refers to Section 18 of the CARP Law providing in full as follows: SEC. 18. Valuation and Mode of Compensation. The LBP shall compensate the landowner in such amount as may be agreed upon by the landowner and the DAR and the LBP, in accordance with the criteria provided for in Sections 16 and 17, and other pertinent provisions hereof, or as may be finally determined by the court, as the just compensation for the land. The compensation shall be paid in one of the following modes, at the option of the landowner: (1) Cash payment, under the following terms and conditions: (a) For lands above fifty (50) hectares, insofar as the excess hectarage is concerned Twenty-five percent (25%) cash, the balance to be paid in government financial instruments negotiable at any time. (b) For lands above twenty-four (24) hectares and up to fifty (50) hectares Thirty percent (30%) cash, the balance to be paid in government financial instruments negotiable at any time. (c) For lands twenty-four (24) hectares and below Thirty-five percent (35%) cash, the balance to be paid in government financial instruments negotiable at any time. (2) Shares of stock in government-owned or controlled corporations, LBP preferred shares, physical assets or other qualified investments in accordance with guidelines set by the PARC; (3) Tax credits which can be used against any tax liability; (4) LBP bonds, which shall have the following features: (a) Market interest rates aligned with 91-day treasury bill rates. Ten percent (10%) of the face value of the bonds shall mature every year from the date of issuance until the tenth (10th) year: Provided, That should the landowner choose to forego the cash portion, whether in full or in part, he shall be paid correspondingly in LBP bonds;

(b) Transferability and negotiability. Such LBP bonds may be used by the landowner, his successors-ininterest or his assigns, up to the amount of their face value, for any of the following: (i) Acquisition of land or other real properties of the government, including assets under the Asset Privatization Program and other assets foreclosed by government financial institutions in the same province or region where the lands for which the bonds were paid are situated; (ii) Acquisition of shares of stock of governmentowned or controlled corporations or shares of stock owned by the government in private corporations; (iii) Substitution for surety or bail bonds for the provisional release of accused persons, or for performance bonds; (iv) Security for loans with any government financial institution, provided the proceeds of the loans shall be invested in an economic enterprise, preferably in a small and medium- scale industry, in the same province or region as the land for which the bonds are paid; (v) Payment for various taxes and fees to government: Provided, That the use of these bonds for these purposes will be limited to a certain percentage of the outstanding balance of the financial instruments; Provided, further, That the PARC shall determine the percentages mentioned above; (vi) Payment for tuition fees of the immediate family of the original bondholder in government universities, colleges, trade schools, and other institutions; (vii) Payment for fees of the immediate family of the original bondholder in government hospitals; and (viii) Such other uses as the PARC may from time to time allow. The contention of the petitioners in G.R. No. 79777 is that the above provision is unconstitutional insofar as it requires the owners of the expropriated properties to accept just compensation therefor in less than money, which is the only medium of payment allowed. In support of this contention, they cite jurisprudence holding that:
The fundamental rule in expropriation matters is that the owner of the property expropriated is entitled to a just compensation, which should be neither more nor less, whenever it is possible to make the assessment, than the money equivalent of said

property. Just compensation has always been understood to be the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation . 45 (Emphasis supplied.)

In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held: It is well-settled that just compensation means the equivalent for the value of the property at the time of its taking. Anything beyond that is more, and anything short of that is less, than just compensation. It means a fair and full equivalent for the loss sustained, which is the measure of the indemnity, not whatever gain would accrue to the expropriating entity. The market value of the land taken is the just compensation to which the owner of condemned property is entitled, the market value being that sum of money which a person desirous, but not compelled to buy, and an owner, willing, but not compelled to sell, would agree on as a price to be given and received for such property. (Emphasis supplied.) In the United States, where much of our jurisprudence on the subject has been derived, the weight of authority is also to the effect that just compensation for property expropriated is payable only in money and not otherwise. Thus
The medium of payment of compensation is ready money or cash. The condemnor cannot compel the owner to accept anything but money, nor can the owner compel or require the condemnor to pay him on any other basis than the value of the property in money at the time and in the manner prescribed by the Constitution and the statutes. When the power of eminent domain is resorted to, there must be a standard medium of payment, binding upon both parties, and the law has fixed that standard as money in cash. 47 (Emphasis supplied.) Part cash and deferred payments are not and cannot, in the nature of things, be regarded as a reliable and constant standard of compensation. 48 "Just compensation" for property taken by condemnation means a fair equivalent in money, which must be paid at least within a reasonable time after the taking, and it is not within the power of the Legislature to substitute for such payment future obligations, bonds, or other valuable advantage. 49 (Emphasis supplied.)

It cannot be denied from these cases that the traditional medium for the payment of just compensation is money and no other. And so, conformably, has just compensation been paid in the past solely in that medium. However, we do not deal here with the traditional excercise of the power of eminent domain. This is not an ordinary expropriation where only a specific property of relatively limited area is sought to be taken by the State from its owner for a specific and perhaps local purpose. What we deal with here is a revolutionary kind of expropriation. The expropriation before us affects all private agricultural lands whenever found and of whatever kind as long as they are in excess of the maximum retention limits allowed their owners. This kind of expropriation is intended for the benefit not only of a particular community or of a small segment of the population but of the entire Filipino nation, from all levels of our society, from the impoverished farmer to the land-glutted owner. Its purpose does not cover only the whole territory of this country but goes beyond in time to the foreseeable future, which it hopes to secure and edify with the vision and the sacrifice of the present generation of Filipinos. Generations yet to come are as involved in

this program as we are today, although hopefully only as beneficiaries of a richer and more fulfilling life we will guarantee to them tomorrow through our thoughtfulness today. And, finally, let it not be forgotten that it is no less than the Constitution itself that has ordained this revolution in the farms, calling for "a just distribution" among the farmers of lands that have heretofore been the prison of their dreams but can now become the key at least to their deliverance. Such a program will involve not mere millions of pesos. The cost will be tremendous. Considering the vast areas of land subject to expropriation under the laws before us, we estimate that hundreds of billions of pesos will be needed, far more indeed than the amount of P50 billion initially appropriated, which is already staggering as it is by our present standards. Such amount is in fact not even fully available at this time. We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian reform as a top priority project of the government. It is a part of this assumption that when they envisioned the expropriation that would be needed, they also intended that the just compensation would have to be paid not in the orthodox way but a less conventional if more practical method. There can be no doubt that they were aware of the financial limitations of the government and had no illusions that there would be enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers. We may therefore assume that their intention was to allow such manner of payment as is now provided for by the CARP Law, particularly the payment of the balance (if the owner cannot be paid fully with money), or indeed of the entire amount of the just compensation, with other things of value. We may also suppose that what they had in mind was a similar scheme of payment as that prescribed in P.D. No. 27, which was the law in force at the time they deliberated on the new Charter and with which they presumably agreed in principle. The Court has not found in the records of the Constitutional Commission any categorical agreement among the members regarding the meaning to be given the concept of just compensation as applied to the comprehensive agrarian reform program being contemplated. There was the suggestion to "fine tune" the requirement to suit the demands of the project even as it was also felt that they should "leave it to Congress" to determine how payment should be made to the landowner and reimbursement required from the farmer-beneficiaries. Such innovations as "progressive compensation" and "State-subsidized compensation" were also proposed. In the end, however, no special definition of the just compensation for the lands to be expropriated was reached by the Commission. 50 On the other hand, there is nothing in the records either that militates against the assumptions we are making of the general sentiments and intention of the members on the content and manner of the payment to be made to the landowner in the light of the magnitude of the expenditure and the limitations of the expropriator. With these assumptions, the Court hereby declares that the content and manner of the just compensation provided for in the afore- quoted Section 18 of the CARP Law is not violative of the Constitution. We do not mind admitting that a certain degree of pragmatism has influenced our decision on this issue, but after all this Court is not a cloistered institution removed from the realities and demands of society or oblivious to the need for its enhancement. The Court is as acutely anxious as the rest of our people to see the goal of agrarian reform achieved at last after the frustrations and deprivations of our peasant masses during all these disappointing decades. We are aware that invalidation of the said section will result in the nullification of the entire program, killing the farmer's hopes even as they approach realization and resurrecting the spectre of discontent and dissent in the restless countryside. That is not in our view the intention of the Constitution, and that is not what we shall decree today.

Accepting the theory that payment of the just compensation is not always required to be made fully in money, we find further that the proportion of cash payment to the other things of value constituting the total payment, as determined on the basis of the areas of the lands expropriated, is not unduly oppressive upon the landowner. It is noted that the smaller the land, the bigger the payment in money, primarily because the small landowner will be needing it more than the big landowners, who can afford a bigger balance in bonds and other things of value. No less importantly, the government financial instruments making up the balance of the payment are "negotiable at any time." The other modes, which are likewise available to the landowner at his option, are also not unreasonable because payment is made in shares of stock, LBP bonds, other properties or assets, tax credits, and other things of value equivalent to the amount of just compensation. Admittedly, the compensation contemplated in the law will cause the landowners, big and small, not a little inconvenience. As already remarked, this cannot be avoided. Nevertheless, it is devoutly hoped that these countrymen of ours, conscious as we know they are of the need for their forebearance and even sacrifice, will not begrudge us their indispensable share in the attainment of the ideal of agrarian reform. Otherwise, our pursuit of this elusive goal will be like the quest for the Holy Grail. The complaint against the effects of non-registration of the land under E.O. No. 229 does not seem to be viable any more as it appears that Section 4 of the said Order has been superseded by Section 14 of the CARP Law. This repeats the requisites of registration as embodied in the earlier measure but does not provide, as the latter did, that in case of failure or refusal to register the land, the valuation thereof shall be that given by the provincial or city assessor for tax purposes. On the contrary, the CARP Law says that the just compensation shall be ascertained on the basis of the factors mentioned in its Section 17 and in the manner provided for in Section 16. The last major challenge to CARP is that the landowner is divested of his property even before actual payment to him in full of just compensation, in contravention of a well- accepted principle of eminent domain. The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is consistent both here and in other democratic jurisdictions. Thus: Title to property which is the subject of condemnation proceedings does not vest the condemnor until the judgment fixing just compensation is entered and paid, but the condemnor's title relates back to the date on which the petition under the Eminent Domain Act, or the commissioner's report under the Local Improvement Act, is filed.51 ... although the right to appropriate and use land taken for a canal is complete at the time of entry, title to the property taken remains in the owner until payment is actually made. 52 (Emphasis supplied.) In Kennedy v. Indianapolis, 53 the US Supreme Court cited several cases holding that title to property does not pass to the condemnor until just compensation had actually been made. In fact, the decisions appear to be uniformly to this effect. As early as 1838, in Rubottom v. McLure, 54 it was held that "actual payment to the owner of the condemned property was a condition precedent to the investment of the title to the property in the State" albeit "not to the appropriation of it to public use." In Rexford v. Knight, 55 the Court of Appeals of New York said that the construction upon the statutes was that the fee did not vest in the State until the payment of the compensation although the authority to enter upon and appropriate the land was complete prior to the payment. Kennedy further said that "both on principle and authority the rule is ... that the right to enter on and use the property

is complete, as soon as the property is actually appropriated under the authority of law for a public use,but that the title does not pass from the owner without his consent, until just compensation has been made to him." Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, 56 that: If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will be apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid ... . (Emphasis supplied.) It is true that P.D. No. 27 expressly ordered the emancipation of tenant-farmer as October 21, 1972 and declared that he shall "be deemed the owner" of a portion of land consisting of a family-sized farm except that "no title to the land owned by him was to be actually issued to him unless and until he had become a full-fledged member of a duly recognized farmers' cooperative." It was understood, however, that full payment of the just compensation also had to be made first, conformably to the constitutional requirement. When E.O. No. 228, categorically stated in its Section 1 that: All qualified farmer-beneficiaries are now deemed full owners as of October 21, 1972 of the land they acquired by virtue of Presidential Decree No. 27. (Emphasis supplied.) it was obviously referring to lands already validly acquired under the said decree, after proof of fullfledged membership in the farmers' cooperatives and full payment of just compensation. Hence, it was also perfectly proper for the Order to also provide in its Section 2 that the "lease rentals paid to the landowner by the farmer- beneficiary after October 21, 1972 (pending transfer of ownership after full payment of just compensation), shall be considered as advance payment for the land." The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the government on receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the landowner. 57 No outright change of ownership is contemplated either. Hence, the argument that the assailed measures violate due process by arbitrarily transferring title before the land is fully paid for must also be rejected. It is worth stressing at this point that all rights acquired by the tenant-farmer under P.D. No. 27, as recognized under E.O. No. 228, are retained by him even now under R.A. No. 6657. This should counter-balance the express provision in Section 6 of the said law that "the landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder, further, That original homestead grantees or direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they continue to cultivate said homestead." In connection with these retained rights, it does not appear in G.R. No. 78742 that the appeal filed by the petitioners with the Office of the President has already been resolved. Although we have said that the doctrine of exhaustion of administrative remedies need not preclude immediate resort to judicial action, there are factual issues that have yet to be examined on the administrative level,

especially the claim that the petitioners are not covered by LOI 474 because they do not own other agricultural lands than the subjects of their petition. Obviously, the Court cannot resolve these issues. In any event, assuming that the petitioners have not yet exercised their retention rights, if any, under P.D. No. 27, the Court holds that they are entitled to the new retention rights provided for by R.A. No. 6657, which in fact are on the whole more liberal than those granted by the decree. V The CARP Law and the other enactments also involved in these cases have been the subject of bitter attack from those who point to the shortcomings of these measures and ask that they be scrapped entirely. To be sure, these enactments are less than perfect; indeed, they should be continuously re-examined and rehoned, that they may be sharper instruments for the better protection of the farmer's rights. But we have to start somewhere. In the pursuit of agrarian reform, we do not tread on familiar ground but grope on terrain fraught with pitfalls and expected difficulties. This is inevitable. The CARP Law is not a tried and tested project. On the contrary, to use Justice Holmes's words, "it is an experiment, as all life is an experiment," and so we learn as we venture forward, and, if necessary, by our own mistakes. We cannot expect perfection although we should strive for it by all means. Meantime, we struggle as best we can in freeing the farmer from the iron shackles that have unconscionably, and for so long, fettered his soul to the soil. By the decision we reach today, all major legal obstacles to the comprehensive agrarian reform program are removed, to clear the way for the true freedom of the farmer. We may now glimpse the day he will be released not only from want but also from the exploitation and disdain of the past and from his own feelings of inadequacy and helplessness. At last his servitude will be ended forever. At last the farm on which he toils will be his farm. It will be his portion of the Mother Earth that will give him not only the staff of life but also the joy of living. And where once it bred for him only deep despair, now can he see in it the fruition of his hopes for a more fulfilling future. Now at last can he banish from his small plot of earth his insecurities and dark resentments and "rebuild in it the music and the dream." WHEREFORE, the Court holds as follows: 1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos. 228 and 229 are SUSTAINED against all the constitutional objections raised in the herein petitions. 2. Title to all expropriated properties shall be transferred to the State only upon full payment of compensation to their respective owners. 3. All rights previously acquired by the tenant- farmers under P.D. No. 27 are retained and recognized. 4. Landowners who were unable to exercise their rights of retention under P.D. No. 27 shall enjoy the retention rights granted by R.A. No. 6657 under the conditions therein prescribed. 5. Subject to the above-mentioned rulings all the petitions are DISMISSED, without pronouncement as to costs. SO ORDERED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes 1 Art. 11, Sec. 5. 2 1973 Constitution, Art. II, Sec. 6. 3 Ibid., Art. XIV, Sec. 12. 4 R.A. No. 6657, Sec. 15. 5 149 SCRA 305. 6 150 SCRA 89. 7 55 SCRA 26. 8 91 SCRA 294. 9 113 SCRA 798. 10 136 SCRA 271; 146 SCRA 446. 11 Art. VIII, Sec. 4(2). 12 Dumlao v. COMELEC, 95 SCRA 392. 13 Ex Parte Levitt, 303 US 633. 14 Araneta v. Dinglasan, 84 Phil. 368. 15 Pascual v. Secretary of Public Works, 110 Phil. 331; PHILCONSA v. Gimenez, 15 SCRA 479; Sanidad v. COMELEC, 73 SCRA 333. 16 Angara v. Electoral Commission, 63 Phil. 139. 17 R.A. No. 6657, Sec. 75. 18 Ibid., Sec. 63. 19 Bengzon v. Secretary of Justice, 299 US 410. 20 Alalayan v. NPC, 24 SCRA 172; Sumulong v. COMELEC, 73 Phil. 288. Tio v. Videogram Regulatory Board, 151 SCRA 208. 21 Supra.

22 Lamb v. Phipps, 22 Phil. 456. 23 Malabanan v. Ramento, 129 SCRA 359; Espanol v. Chairman, Philippine Veterans Administration, 137 SCRA 314. 24 106 Phil. 144. 25 260 US 393. 26 Powell v. Pennsylvania, 127 US 678: Lutz v. Araneta, 98 Phil. 148; Tio v. Videogram Regulatory Board, supra. 27 John J. Costonis "The Disparity Issue: A Context for the Grand Central Terminal Decision," Harvard Law Review, Vol. 91:40,1977, p. 404. 28 348 US 1954. 29 438 US 104. 30 See note 27. 31 International Harvester Co. v. Missouri, 234 US 199. 32 People v. Cayat, 68 Phil. 12. 33 Ichong v. Hernandez, 101 Phil. 1155. 34 US v. Toribio, 15 Phil. 85; Fable v. City of Manila, 21 Phil. 486; Case v. Board of Health, 24 Phil. 256. 35 Noble v. City of Manila, 67 Phil. 1. 36 100 Phil. 1101. 37 1987 Constitution, Art. VIII, Sec. 1. 38 57 L ed. 1063. 39 Manila Railroad Co. v. Velasquez, 32 Phil. 286. 40 Province of Tayabas v. Perez, 66 Phil. 467; J.M. Tuazon & Co., Inc. v. Land Tenure Administration, 31 SCRA 413; Municipality of Daet v. Court of Appeals, 93 SCRA 503; Manotok v. National Housing Authority, 150 SCRA 89. 41 City of Manila v. Estrada, 25 Phil. 208. 42 58 SCRA 336. 43 Lewis, Law of Eminent Domain, 3rd Edition, pp. 1166- 1167.

44 149 SCRA 305. 45 Manila Railroad Co. v. Velasquez, 32 Phil. 286; Province of Tayabas v. Perez, supra, at note 40. 46 31 SCRA 413. 47 Mandl v. City of Phoenix, 18 p 2d 273. 48 Sacramento Southern R. Co. v. Heilbron 156 Cal. 408,104 pp. 979, 980. 49 City of Waterbury v. Platt Bros. & Co., 56 A 856, 76 Conn, 435 citing Butler v. Ravine Road Sewer Com'rs, 39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31 Am. Dec. 313; Sanborn v. Helden, 51 Cal 266; Burlington & C.R. Co. v. Schweikart, 14 p. 329, 10 Colo, 178; 23 Words and Phrases, pl. 460. 50 Record of the Constitutional Commission, Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247. 51 Chicago Park Dist. v. Downey Coal Co., 1 Ill. 2d 54. 52 Kennedy v. Indianapolis, 103 US 599, 26 L ed 550. 53 Ibid. 54 4 Blkf., 508. 55 11 NY 314. 56 40 Phil. 550. 57 Sec. 16(d). Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 91649 May 14, 1991 ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,petitioners, vs. PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent. H.B. Basco & Associates for petitioners.

Valmonte Law Offices collaborating counsel for petitioners. Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:p
A TV ad proudly announces: "The new PAGCOR responding through responsible gaming." But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals, public policy and order, and because A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila City government's right to impose taxes and license fees, which is recognized by law; B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local government's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrined principle of local autonomy; C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices; D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo) In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo). The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD 1869 on the alleged grounds mentioned above. The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was originally conducted in the well known floating casino "Philippine Tourist." The operation was considered a success for it proved to be a potential source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law, under the following declared policy Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the following objectives: (a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate entity to be controlled, administered and supervised by the Government. (b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects, such as flood control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and such other essential public services; (2) create recreation and integrated facilities which will expand and improve the country's existing tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct and operation of gambling clubs and casinos without direct government involvement. (Section 1, P.D. 1869) To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or modified. It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with various governmental agencies, and other private associations and organizations. In its 3 1/2 years of operation under the present administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families. But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for being "contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is violative of the equal protection clause and local autonomy as well as for running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution. This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has over-stepped the limits of its authority under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra). In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored the . . . thoroughly established principle which must be followed in all cases where questions of constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540) Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to file the instant petition. Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371) With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must technicalities of procedure." We have since then applied the exception in many other

cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343). Having disposed of the procedural issue, We will now discuss the substantive issues raised. Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not mean that the Government cannot regulate it in the exercise of its police power. The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386). Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra) It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agencies of the winds of change. What was the reason behind the enactment of P.D. 1869? P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations in one corporate entity the PAGCOR, was beneficial not just to the Government but to society in general. It is a reliable source of much needed revenue for the cash strapped Government. It provided funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of the Government, the evil practices and corruptions that go with gambling will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896. Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local." (2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this franchise from the

Corporation; nor shall any form or tax or charge attach in any way to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by the Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial or national government authority (Section 13 [2]). Their contention stated hereinabove is without merit for the following reasons: (a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445). (b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus: Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked. Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai and other forms of gambling shall be issued by the national government upon proper application and verification of the qualification of the applicant . . . Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus: Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise all the powers, authority and the responsibilities

vested in the Securities and Exchange Commission over such affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original incorporation. PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local government. The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579) This doctrine emanates from the "supremacy" of the National Government over local governments. Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate a federal instrumentality in such a way as to prevent it from consummating its federal responsibilities, or even to seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied) Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42). The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it. (e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides: Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. (emphasis supplied) The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy.

Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio." Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government. (emphasis supplied) As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539). What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments. As gambling is usually an offense against the State, legislative grant or express charter power is generally necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied) Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and other vices" (p. 82, Rollo). We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989). The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations which are different in fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827). Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827) The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name must be treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of those cases in which harm to the few concerned is not less than the harm to the public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651). Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive Department to recommend to Congress its repeal or amendment. The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256). On the issue of "monopoly," however, the Constitution provides that: Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony) It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The state must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this is a matter of policy for the Legislature to decide. On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. They were rather directives addressed to the executive and the legislature. If the executive and the legislature failed to heed the directives of the articles the available remedy was not judicial or political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2) Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such

a declaration. Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as the state principles on social justice, role of youth and educational values" being raised, is up for Congress to determine. As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521 Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and which this Court may not constitutionally pass upon. Those issues should be addressed rather to the political departments of government: the President and the Congress. Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler and his family but also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons may have lost their material fortunes, mental control, physical health, or even their lives does not necessarily mean that the same are directly attributable to gambling. Gambling may have been the antecedent,but certainly not necessarily the cause. For the same consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result of the learned decision penned by my brother Mr. Justice Paras. This means that I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy." It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. The courts, as the decision states, cannot inquire into the wisdom, morality or expediency of policies adopted by the political departments of government in areas which fall within their authority, except only when such policies pose a clear and present danger to the life, liberty or property of the individual. This case does not involve such a factual situation. However, I hasten to make of record that I do not subscribe to gambling in any form. It demeans the human personality, destroys self-confidence and eviscerates one's self-respect, which in the long run will corrode whatever is left of the Filipino moral character. Gambling has wrecked and will continue to wreck families and homes; it is an antithesis to individual reliance and reliability as well as personal industry which are the touchstones of real economic progress and national development. Gambling is reprehensible whether maintained by government or privatized. The revenues realized by the government out of "legalized" gambling will, in the long run, be more than offset and negated by the irreparable damage to the people's moral values. Also, the moral standing of the government in its repeated avowals against "illegal gambling" is fatally flawed and becomes untenable when it itself engages in the very activity it seeks to eradicate. One can go through the Court's decision today and mentally replace the activity referred to therein as gambling, which is legal only because it is authorized by law and run by the government, with the activity known asprostitution. Would prostitution be any less reprehensible were it to be authorized by law, franchised, and "regulated" by the government, in return for the substantial revenues it would yield the government to carry out its laudable projects, such as infrastructure and social amelioration? The question, I believe, answers itself. I submit that the sooner the legislative department outlaws all forms of gambling, as a fundamental state policy, and the sooner the executive implements such policy, the better it will be for the nation. Melencio-Herrera, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 80391 February 28, 1989 SULTAN ALIMBUSAR P. LIMBONA, petitioner, vs. CONTE MANGELIN, SALIC ALI, SALINDATO ALI, PILIMPINAS CONDING, ACMAD TOMAWIS,

GERRY TOMAWIS, JESUS ORTIZ, ANTONIO DELA FUENTE, DIEGO PALOMARES, JR., RAUL DAGALANGIT, and BIMBO SINSUAT, respondents. Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner petitioner. Makabangkit B. Lanto for respondents.

SARMIENTO, J.: The acts of the Sangguniang Pampook of Region XII are assailed in this petition. The antecedent facts are as follows: 1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook, Regional Autonomous Government, Region XII, representing Lanao del Sur. 2. On March 12, 1987 petitioner was elected Speaker of the Regional Legislative Assembly or Batasang Pampook of Central Mindanao (Assembly for brevity). 3. Said Assembly is composed of eighteen (18) members. Two of said members, respondents Acmad Tomawis and Pakil Dagalangit, filed on March 23, 1987 with the Commission on Elections their respective certificates of candidacy in the May 11, 1987 congressional elections for the district of Lanao del Sur but they later withdrew from the aforesaid election and thereafter resumed again their positions as members of the Assembly. 4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as Speaker of the Assembly, Region XII, in a letter which reads: The Committee on Muslim Affairs well undertake consultations and dialogues with local government officials, civic, religious organizations and traditional leaders on the recent and present political developments and other issues affecting Regions IX and XII. The result of the conference, consultations and dialogues would hopefully chart the autonomous governments of the two regions as envisioned and may prod the President to constitute immediately the Regional Consultative Commission as mandated by the Commission. You are requested to invite some members of the Pampook Assembly of your respective assembly on November 1 to 15, 1987, with venue at the Congress of the Philippines. Your presence, unstinted support and cooperation is (sic) indispensable. 5. Consistent with the said invitation, petitioner sent a telegram to Acting Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen that there shall be no

session in November as "our presence in the house committee hearing of Congress take (sic) precedence over any pending business in batasang pampook ... ." 6. In compliance with the aforesaid instruction of the petitioner, Acting Secretary Alimbuyao sent to the members of the Assembly the following telegram: TRANSMITTING FOR YOUR INFORMATION AND GUIDANCE TELEGRAM RECEIVED FROM SPEAKER LIMBONA QUOTE CONGRESSMAN JIMMY MATALAM CHAIRMAN OF THE HOUSE COMMITTEE ON MUSLIM AFFAIRS REQUESTED ME TO ASSIST SAID COMMITTEE IN THE DISCUSSION OF THE PROPOSED AUTONOMY ORGANIC NOV. 1ST TO 15. HENCE WERE ALL ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN NOVEMBER AS OUR PRESENCE IN THE HOUSE COMMITTEE HEARING OF CONGRESS TAKE PRECEDENCE OVER ANY PENDING BUSINESS IN BATASANG PAMPOOK OF MATALAM FOLLOWS UNQUOTE REGARDS. 7. On November 2, 1987, the Assembly held session in defiance of petitioner's advice, with the following assemblymen present: 1. Sali, Salic 2. Conding, Pilipinas (sic) 3. Dagalangit, Rakil 4. Dela Fuente, Antonio 5. Mangelen, Conte 6. Ortiz, Jesus 7. Palomares, Diego 8. Sinsuat, Bimbo 9. Tomawis, Acmad 10. Tomawis, Jerry After declaring the presence of a quorum, the Speaker Pro-Tempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant. 8. On November 5, 1987, the session of the Assembly resumed with the following Assemblymen present: 1. Mangelen Conte-Presiding Officer 2. Ali Salic

3. Ali Salindatu 4. Aratuc, Malik 5. Cajelo, Rene 6. Conding, Pilipinas (sic) 7. Dagalangit, Rakil 8. Dela Fuente, Antonio 9. Ortiz, Jesus 10 Palomares, Diego 11. Quijano, Jesus 12. Sinsuat, Bimbo 13. Tomawis, Acmad 14. Tomawis, Jerry An excerpt from the debates and proceeding of said session reads: HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House, with the presence of our colleagues who have come to attend the session today, I move to call the names of the new comers in order for them to cast their votes on the previous motion to declare the position of the Speaker vacant. But before doing so, I move also that the designation of the Speaker Pro Tempore as the Presiding Officer and Mr. Johnny Evangelists as Acting Secretary in the session last November 2, 1987 be reconfirmed in today's session. HON. SALIC ALI: I second the motions. PRESIDING OFFICER: Any comment or objections on the two motions presented? Me chair hears none and the said motions are approved. ...
Twelve (12) members voted in favor of the motion to declare the seat of the Speaker vacant; one abstained and none voted against. 1

Accordingly, the petitioner prays for judgment as follows: WHEREFORE, petitioner respectfully prays that(a) This Petition be given due course;

(b) Pending hearing, a restraining order or writ of preliminary injunction be issued enjoining respondents from proceeding with their session to be held on November 5, 1987, and on any day thereafter; (c) After hearing, judgment be rendered declaring the proceedings held by respondents of their session on November 2, 1987 as null and void; (d) Holding the election of petitioner as Speaker of said Legislative Assembly or Batasan Pampook, Region XII held on March 12, 1987 valid and subsisting, and (e) Making the injunction permanent.
Petitioner likewise prays for such other relief as may be just and equitable. 2

Pending further proceedings, this Court, on January 19, 1988, received a resolution filed by the Sangguniang Pampook, "EXPECTING ALIMBUSAR P. LIMBONA FROM MEMBERSHIP OF THE SANGGUNIANG PAMPOOK AUTONOMOUS REGION XII," 3 on the grounds, among other things, that the petitioner "had caused to be prepared and signed by him paying [sic] the salaries and emoluments of Odin Abdula, who was considered resigned after filing his Certificate of Candidacy for Congressmen for the First District of Maguindanao in the last May 11, elections. . . and nothing in the record of the Assembly will show that any request for reinstatement by Abdula was ever made . . ." 4 and that "such action of Mr. Lim bona in paying Abdula his salaries and emoluments without authority from the Assembly . . . constituted a usurpation of the power of the Assembly," 5 that the petitioner "had recently caused withdrawal of so much amount of cash from the Assembly resulting to the non-payment of the salaries and emoluments of some Assembly [sic]," 6 and that he had "filed a case before the Supreme Court against some members of the Assembly on question which should have been resolved within the confines of the Assembly," 7 for which the respondents now submit that the petition had become "moot and academic". 8 The first question, evidently, is whether or not the expulsion of the petitioner (pending litigation) has made the case moot and academic. We do not agree that the case has been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic. On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. On the other hand, what appears in the records is an admission by the Assembly (at least, the respondents) that "since November, 1987 up to this writing, the petitioner has not set foot at the Sangguniang Pampook." 9 "To be sure, the private respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to Cotabato City," 10 but that was "so that their differences could be threshed out and settled." 11 Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law. While we have held that due process, as the term is known in administrative law, does not absolutely require notice and that a party need only be given the opportunity to be heard, 12 it does not appear herein that the petitioner had, to begin with, been made aware that he had in fact stood charged of graft and corruption before his collegues. It cannot be said therefore that he was accorded any

opportunity to rebut their accusations. As it stands, then, the charges now levelled amount to mere accusations that cannot warrant expulsion. In the second place, (the resolution) appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the Assemblyman act which some members claimed unnecessarily and unduly assails their integrity and character as representative of the people" 13 an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution, 14 and, unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts. We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the Assembly is enjoined, should it still be so minded, to commence proper proceedings therefor in line with the most elementary requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring colleagues, their acts are nonetheless subject to the moderating band of this Court in the event that such discretion is exercised with grave abuse. It is, to be sure, said that precisely because the Sangguniang Pampook(s) are "autonomous," the courts may not rightfully intervene in their affairs, much less strike down their acts. We come, therefore, to the second issue: Are the so-called autonomous governments of Mindanao, as they are now constituted, subject to the jurisdiction of the national courts? In other words, what is the extent of self-government given to the two autonomous governments of Region IX and XII? The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 161815 promulgated on July 25, 1979. Among other things, the Decree established "internal autonomy" 16 in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution," 17 with legislative and executive machinery to exercise the powers and responsibilities 18specified therein. It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," 19 except to "act on matters which are within the jurisdiction and competence of the National Government," 20 "which include, but are not limited to, the following: (1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport (7) Postal matters and telecommunications;

(8) Customs and quarantine; (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and
(12) General auditing. 21

In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions ..." 22 Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," 23 "and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 24 At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" 25 over them, but only to "ensure that local affairs are administered according to law." 26 He has no control over their acts in the sense that he can substitute their judgments with his own. 27 Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declare to be autonomous . In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 28 But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case. Under the 1987 Constitution, local government units enjoy autonomy in these two senses, thus:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. Here shall be autonomous regions in Muslim Mindanao ,and the Cordilleras as hereinafter provided. 29 Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
30

xxx xxx xxx

See. 15. Mere shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures,

and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

31

An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X, sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government).32 If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction. An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation. Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the power of general supervision and control over Autonomous Regions." 33 In the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services, thus: SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook shall exercise local legislative powers over regional affairs within the framework of national development plans, policies and goals, in the following areas: (1) Organization of regional administrative system; (2) Economic, social and cultural development of the Autonomous Region; (3) Agricultural, commercial and industrial programs for the Autonomous Region; (4) Infrastructure development for the Autonomous Region; (5) Urban and rural planning for the Autonomous Region; (6) Taxation and other revenue-raising measures as provided for in this Decree; (7) Maintenance, operation and administration of schools established by the Autonomous Region; (8) Establishment, operation and maintenance of health, welfare and other social services, programs and facilities; (9) Preservation and development of customs, traditions, languages and culture indigenous to the Autonomous Region; and (10) Such other matters as may be authorized by law,including the enactment of such measures as may be necessary for the promotion of the general welfare of the people in the Autonomous Region. The President shall exercise such powers as may be necessary to assure that enactment and acts of the Sangguniang Pampook and the Lupong Tagapagpaganap ng Pook are in compliance with this Decree, national legislation, policies, plans and programs.

The Sangguniang Pampook shall maintain liaison with the Batasang Pambansa.

34

Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker. Briefly, the petitioner assails the legality of his ouster as Speaker on the grounds that: (1) the Sanggunian, in convening on November 2 and 5, 1987 (for the sole purpose of declaring the office of the Speaker vacant), did so in violation of the Rules of the Sangguniang Pampook since the Assembly was then on recess; and (2) assuming that it was valid, his ouster was ineffective nevertheless for lack of quorum. Upon the facts presented, we hold that the November 2 and 5, 1987 sessions were invalid. It is true that under Section 31 of the Region XII Sanggunian Rules, "[s]essions shall not be suspended or adjourned except by direction of the Sangguniang Pampook," 35 but it provides likewise that "the Speaker may, on [sic] his discretion, declare a recess of "short intervals." 36 Of course, there is disagreement between the protagonists as to whether or not the recess called by the petitioner effective November 1 through 15, 1987 is the "recess of short intervals" referred to; the petitioner says that it is while the respondents insist that, to all intents and purposes, it was an adjournment and that "recess" as used by their Rules only refers to "a recess when arguments get heated up so that protagonists in a debate can talk things out informally and obviate dissenssion [sic] and disunity. 37 The Court agrees with the respondents on this regard, since clearly, the Rules speak of "short intervals." Secondly, the Court likewise agrees that the Speaker could not have validly called a recess since the Assembly had yet to convene on November 1, the date session opens under the same Rules. 38 Hence, there can be no recess to speak of that could possibly interrupt any session. But while this opinion is in accord with the respondents' own, we still invalidate the twin sessions in question, since at the time the petitioner called the "recess," it was not a settled matter whether or not he could. do so. In the second place, the invitation tendered by the Committee on Muslim Affairs of the House of Representatives provided a plausible reason for the intermission sought. Thirdly, assuming that a valid recess could not be called, it does not appear that the respondents called his attention to this mistake. What appears is that instead, they opened the sessions themselves behind his back in an apparent act of mutiny. Under the circumstances, we find equity on his side. For this reason, we uphold the "recess" called on the ground of good faith. It does not appear to us, moreover, that the petitioner had resorted to the aforesaid "recess" in order to forestall the Assembly from bringing about his ouster. This is not apparent from the pleadings before us. We are convinced that the invitation was what precipitated it. In holding that the "recess" in question is valid, we are not to be taken as establishing a precedent, since, as we said, a recess can not be validly declared without a session having been first opened. In upholding the petitioner herein, we are not giving him a carte blanche to order recesses in the future in violation of the Rules, or otherwise to prevent the lawful meetings thereof. Neither are we, by this disposition, discouraging the Sanggunian from reorganizing itself pursuant to its lawful prerogatives. Certainly, it can do so at the proper time. In the event that be petitioner should initiate obstructive moves, the Court is certain that it is armed with enough coercive remedies to thwart them. 39 In view hereof, we find no need in dwelling on the issue of quorum. WHEREFORE, premises considered, the petition is GRANTED. The Sangguniang Pampook, Region XII, is ENJOINED to (1) REINSTATE the petitioner as Member, Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof. No costs.

SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Padilla, J., took no part.

Footnotes 1 Rollo, 115-120; emphasis in the original. 2 Id., 6-7. 3 Id., 134-135. 4 Id., 134. 5 Id. 6 Id., 135. 7 Id. 8 Id., 142. 9 Id., 141. 10 Id. 11 Id. 12 Var-Orient Shipping Co., Inc. v. Achacoso, G.R. No. 81805, May 31, 1988. 13 Id., 135. 14 See CONST. (1987), art. III, sec. 11. 15 IMPLEMENTING THE ORGANIZATION OF THE SANGGUNIANG PAMPOOK AND THE LUPONG TAGAPAGPAGANAP NG POOK IN REGION IX AND REGION XII AND FOR OTHER PURPOSES. 16 Pres. Decree No. 1618, sec. 3. 17 Supra. 18 Supra. 19 Supra, sec. 4.

20 Supra. 21 Supra. 22 Supra, sec. 35(a). 23 CONST. (1973), art. XI, sec. 1; also CONST. (1987), supra, art. sec. 3. 24 Batas Blg. 337, sec 2. 25 CONST. (1987), supra, art. X, sec. 4; Batas Blg. 337, supra, sec. 14. 26 Batas Blg. 337, supra; Hebron v. Reyes, 104 Phil. 175 (1958). 27 Hebron v. Reyes, supra. 28 Bernas, Joaquin, "Brewing storm over autonomy," The Manila Chronicle, pp. 4-5. 29 CONST. (1987), supra, art. X, sec. 1. 30 Supra, sec. 2. 31 Supra, sec. 15. 32 Batas Blg. 337, supra, sec. 14. 33 Pres. Decree No. 1618, supra, sec. 35 (b). Whether or not it is constitutional for the President to exercise control over the Sanggunians is another question. 34 Supra, sec. 7. 35 Rollo, Id., 122. 36 Id. 37 Id., 145-146. 38 Id., 121. 39 See Avelino v. Cuenco, 83 Phil. 17 (1949). Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

CORTES, J.: The fundamental right of the people to information on matters of public concern is invoked in this special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service eligibles who passed the civil service examinations for sanitarians. Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the respondent Commission to disclose said information. This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of the right in said Constitution the statutory right to information provided for in the Land Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding, this time to demand access to the records of the Register of Deeds for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]). The constitutional right to information on matters of public concern first gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states: Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to government research data used as basis for policy development." The new provision reads: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis. for policy development, shall be afforded the citizen, subject to such stations as may be provided by law. These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the

fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such as this one. The Solicitor General interposes procedural objections to Our giving due course to this Petition. He challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear legal right to be informed of the civil service eligibilities of the government employees concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in securing this particular information. He further argues that there is no ministerial duty on the part of the Commission to furnish the petitioner with the information he seeks. 1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed. In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3). But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the right of the people to information on matters of public concern, which, by its very nature, is a public right. It has been held that: * * * when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36). From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general "public" which possesses the right. The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even those who have no direct or tangible interest in any real estate transaction are part of the "public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court: * * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say that only those who have a present and existing interest of a

pecuniary character in the particular information sought are given the right of inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387). The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the present suit. 2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a constitutional regime. Only governments operating under fundamental rules defining the limits of their power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion. In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly mandate the duty of the State and its agents to afford access to official records, documents, papers and in addition, government research data used as basis for policy development, subject to such limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Art. 11, Sec. 28). In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an imperative duty of the government officials concerned to publish all important legislative acts and resolutions of a public nature as well as all executive orders and proclamations of general applicability. We granted mandamus in said case, and in the process, We found occasion to expound briefly on the nature of said duty: * * * That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be in included or excluded from such publication. (Tanada v. Tuvera,supra, at 39). (Emphasis supplied). The absence of discretion on the part of government agencia es in allowing the examination of public records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta, supra: Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with the motives, reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the information which the records contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the contents of the records, it is the legislature

and not the officials having custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied). It is clear from the foregoing pronouncements of this Court that government agencies are without discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public. In the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do so, may inspect, examine or copy records relating to registered lands. However, the regulations which the Register of Deeds may promulgate are confined to: * * * prescribing the manner and hours of examination to the end that damage to or loss of, the records may be avoided, that undue interference with the duties of the custodian of the books and documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387) Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate the manner of inspection by the public of criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent judge for his alleged refusal to allow examination of the criminal docket records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to open and view the subject records, We absolved the respondent. In effect, We have also held that the rules and conditions imposed by him upon the manner of examining the public records were reasonable. In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured (Subido vs. Ozaetal supra). Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case. But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the petitioner is within the ambit of the constitutional guarantee. 3. The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.

Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting the nation. But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such as those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of public interest or public concern. a. This question is first addressed to the government agency having custody of the desired information. However, as already discussed, this does not give the agency concerned any discretion to grant or deny access. In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts, and in the proper case, access may be compelled by a writ of Mandamus. In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra,the public concern deemed covered by the statutory right was the knowledge of those real estate transactions which some believed to have been registered in violation of the Constitution. The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed. The Constitution expressly declares as a State policy that: Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]). Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who

are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for their respective positions. b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a given case, the information must not be among the species exempted by law from the operation of the constitutional guarantee. In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass the civil service examinations, as in bar examinations and licensure examinations for various professions, are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case, the government employees concerned claim to be civil service eligibles, the public, through any citizen, has a right to verify their professed eligibilities from the Civil Service Commission. The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations under the law upon access to the register of civil service eligibles for said position, the duty of the respondent Commission to confirm or deny the civil service eligibility of any person occupying the position becomes imperative. Mandamus, therefore lies. WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur. Feliciano, J., is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 83988 September 29, 1989 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 42264227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the

reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

Republic of the Philippines SUPREME COURT Manila G.R. No. 92541 November 13, 1991 MA. CARMEN G. AQUINO-SARMIENTO, petitioner, vs.

MANUEL L. MORATO (in his capacity as Chairman of the MTRCB) and the MOVIE & TELEVISION REVIEW AND CLASSIFICATION BOARD, respondents. Araullo, Zambrano, Gruba, Chua Law Firm for petitioner. Francisco Ma. Chanco for respondents.

BIDIN, J.:p At issue in this petition is the citizen's right of access to official records as guaranteed by the constitution. In February 1989, petitioner, herself a member of respondent Movie and Television Review and Classification Board (MTRCB), wrote its records officer requesting that she be allowed to examine the board's records pertaining to the voting slips accomplished by the individual board members after a review of the movies and television productions. It is on the basis of said slips that films are either banned, cut or classified accordingly. Acting on the said request, the records officer informed petitioner that she has to secure prior clearance from respondent Manuel Morato, as chairman of MTRCB, to gain access to the records sought to be examined. Petitioner's request was eventually denied by respondent Morato on the ground that whenever the members of the board sit in judgment over a film, their decisions as reflected in the individual voting slips partake the nature of conscience votes and as such, are purely and completely private and personal. It is the submission of respondents that the individual voting slips is the exclusive property of the member concerned and anybody who wants access thereto must first secure his (the member's) consent, otherwise, a request therefor may be legally denied. Petitioner argues, on the other hand, that the records she wishes to examine are public in character and other than providing for reasonable conditions regulating the manner and hours of examination, respondents Morato and the classification board have no authority to deny any citizen seeking examination of the board's records. On February 27, 1989, respondent Morato called an executive meeting of the MTRCB to discuss, among others, the issue raised by petitioner. In said meeting, seventeen (17) members of the board voted to declare their individual voting records as classified documents which rendered the same inaccessible to the public without clearance from the chairman. Thereafter, respondent Morato denied petitioner's request to examine the voting slips. However, it was only much later, i.e., on July 27, 1989, that respondent Board issued Resolution No. 10-89 which declared as confidential, private and personal, the decision of the reviewing committee and the voting slips of the members. Petitioner brought the matter to the attention of the Executive Secretary, which in turn, referred the same to respondent Morato for appropriate comment. Another incident which gave rise to this petition occurred in a board meeting held on June 22, 1989. In that meeting, respondent Morato told the board that he has ordered some deletions on the movie "Mahirap ang Magmahal" notwithstanding the fact that said movie was earlier approved for screening by the Board with classification "R-18 without cuts". He explained that his power to

unilaterally change the decision of the Review Committee is authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June 22,1988) which allows the chairman of the board "to downgrade a film (already) reviewed especially those which are controversial." Petitioner informed the Board, however, that respondent Morato possesses no authority to unilaterally reverse a decision of the review committee under PD 1986 (Creating the Movie and Television Review and Classification Board). After the matter was referred by the Deputy Executive Secretary to the Justice Secretary, the latter opined that PD 1896 does not vest respondent Morato any authority to unilaterally reverse the decision of the review committee but declined to comment on the constitutionality of Res. No. 10-89 on the ground that the resolution thereof is a judicial prerogative (Rollo, pp. 38-42). The Justice Secretary's opinion to the contrary notwithstanding, respondent Morato opted to ignore it. Hence, this petition anchored on the following: A. MORATO AND THE MTRCB BY APPROVING AND ENFORCING RESOLUTION NO. 10-89 ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION BECAUSE THE SAME VIOLATES ARTICLE III SECTION 7 OF THE 1987 CONSTITUTION. B. MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND CONSTITUTES AN UNLAWFUL DELEGATION OF DISCRETIONARY POWERS. C. MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION NO. 1 SERIES OF 1990 OF THE SECRETARY OF JUSTICE AND BY INSISTING ON THE VALIDITY OF RESOLUTION NO. 88-1-25 ACTED CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION. Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-1-25 which allows the Chairman of the Board to unilaterally downgrade a film (already) reviewed especially those which are controversial and 2) MTRCB RESOLUTION No. 10-89 (dated July 27, 1989) declaring as strictly confidential, private and personal a) the decision of a reviewing committee which previously reviewed a certain film and b) the individual voting slips of the members of the committee that reviewed the film. Respondents argue at the outset that the instant petition should be dismissed outright for having failed to comply with the doctrine of exhaustion of administrative remedies. We disagree. The doctrine of exhaustion of administrate remedies simply provides that before a party litigant is allowed resort to the courts, he is required to comply with all administrative remedies available under the law (Rosales v. Court of Appeals, 165 SCRA 344 [1988]). The rationale behind this salutory principle is that for reasons of practical considerations, comity and convenience, the courts of law will not entertain a case until all the available administrative remedies provided by law have been resorted to and the appropriate authorities have been given ample opportunity to act and to correct the errors committed in the administrative level. If the error is rectified, judicial intervention would then be unnecessary. Nonetheless, the doctrine of exhaustion of administrative remedies is not absolute. The applicability of the principle admits of certain exceptions, such as: 1) when no administrative review is provided

by law; 2) when the only question involved is one of law (Valmonte v. Valmonte, 170 SCRA 256 [1989], citing Aguilar v. Valencia, 40 SCRA 210 [1971]; Malabanan v. Ramento, 129 SCRA 359 [1984]; Bagatsing v. Ramirez, 74 SCRA 306; Del Mar v. Philippine Veterans Administration, 51 SCRA 340 [1973]; Pascual v. Provincial Board, 106 Phil. 466 [1959]; 3) where the party invoking the doctrine is guilty of estoppel (Vda. de Tan v. Veterans' Backpay Commission [1969]; 4) where the challenged administrative action is patently illegal, arbitrary and oppressive (Azur v. Provincial Board, 27 SCRA 50 [1969]; National Development Co. v. Collector of Customs of Manila, 9 SCRA 429 [1963]; 5) where there is unreasonable delay or official inaction that would greatly prejudice the complainant (Gravador v. Mamigo, 20 SCRA 742 [1967]; Azuelo v. Arnaldo, 108 Phil. 293 [1960]; 6) where to exhaust administrative review is impractical and unreasonable (Cipriano v. Marcelino, 43 SCRA 291); and 7) where the rule of qualified political agency applies (Demaisip v. Court of Appeals, 106 Phil. 237 [1906]). The issue raised in the instant petition is one of law, hence the doctrine of non-exhaustion of administrative remedy relied upon by respondents is inapplicable and cannot be given any effect. At any rate, records are replete with events pointing to the fact that petitioner adhered to the administrative processes in the disposition of the assailed resolutions of public respondents prior to filing the instant petition by, among others, writing the Executive Secretary and bringing the matter to the attention of the Office of the President (Rollo, pp. 145-147). Respondents' claim that petitioner failed to exhaust administrative remedies must therefore fail. Having disposed of the procedural objection raised by respondents, We now proceed to resolve the issues raised by petitioner. In this regard, We find respondents' refusal to allow petitioner to examine the records of respondent MTRCB, pertaining to the decisions of the review committee as well as the individual voting slips of its members, as violative of petitioner's constitutional right of access to public records. More specifically, Sec. 7, Art. III of the Constitution provides that: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions,as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (emphasis supplied) As We held in Legaspi v. Civil Service Commission (150 SCRA 530 [1987]), this constitutional provision is self-executory and supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature (Id. at 165). What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State Policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28)." (See also Taada v. Tuvera, 136 SCRA 27 [1985]; Valmonte v. Belmonte, Jr., 170 SCRA 256 [1989]). Respondents contend, however, that what is rendered by the members of the board in reviewing films and reflected in their individual voting slip is their individual vote of conscience on the motion picture or television program and as such, makes the individual voting slip purely private and personal; an exclusive property of the member concerned. The term private has been defined as "belonging to or concerning, an individual person, company, or interest"; whereas, public means "pertaining to, or belonging to, or affecting a nation, state, or community at large" (People v. Powell, 274 NW 372 [1937]). May the decisions of respondent Board

and the individual members concerned, arrived at in an official capacity, be considered private? Certainly not. As may be gleaned from the decree (PD 1986) creating the respondent classification board, there is no doubt that its very existence is public is character; it is an office created to serve public interest. It being the case, respondents can lay no valid claim to privacy. The right to privacy belongs to the individual acting in his private capacity and not to a governmental agency or officers tasked with, and acting in, the discharge of public duties (See Valmonte v. Belmonte, Jr., supra.) There can be no invasion of privacy in the case at bar since what is sought to be divulged is a product of action undertaken in the course of performing official functions. To declare otherwise would be to clothe every public official with an impregnable mantle of protection against public scrutiny for their official acts. Further, the decisions of the Board and the individual voting slips accomplished by the members concerned are acts made pursuant to their official functions, and as such, are neither personal nor private in nature but rather public in character. They are, therefore, public records access to which is guaranteed to the citizenry by no less than the fundamental law of the land. Being a public right, the exercise thereof cannot be made contingent on the discretion, nay, whim and caprice, of the agency charged with the custody of the official records sought to be examined. The constitutional recognition of the citizen's right of access to official records cannot be made dependent upon the consent of the members of the board concerned, otherwise, the said right would be rendered nugatory. As stated by this Court in Subido v. Ozaeta (80 Phil. 383 [1948]): Except, perhaps when it is clear that the purpose of the examinations is unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with the motives, reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the information which the records contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the contents of the records, it is the legislature and not the officials having custody thereof which is called upon to devise a remedy. (emphasis supplied) It is significant to point out that this Court in the 1948 case of Subido v. Ozaeta, supra, upheld the right to information based on the statutory right then provided in Sec. 56 of the Land Registration Act (Act 496, as amended). Consequently, We see no cogent reason why said right, now constitutionalized, should be given less efficacy and primacy than what the fundament law mandates. The Court is not unaware of RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) which provides, among others, certain exceptions as regards the availability of official records or documents to the requesting public, e.g., closed door Cabinet sessions and deliberations of this Court. Suffice it to state, however, that the exceptions therein enumerated find no application in the case at bar. Petitioner request is not concerned with the deliberations of respondent Board but with its documents or records made after a decision or order has been rendered. Neither will the examination involve disclosure of trade secrets or matters pertaining to national security which would otherwise limit the right of access to official records (See Legaspi v. Civil Service Commission,supra). We are likewise not impressed with the proposition advanced by respondents that respondent Morato is empowered by PD 1986 to unilaterally downgrade or upgrade a film reviewed especially those which are controversial. The pertinent provisions of said decree provides: Sec 4. Decision. The decision of the BOARD either approving or disapproving for exhibition in the Philippines a motion picture, television program, still and other

pictorial advertisement submitted to it for examination and preview must be rendered within a period of ten (10) days which shall be counted from the date of receipt by the BOARD of an application for the purpose . . . For each review session, the Chairman of the Board shall designate a sub-committee composed of at least three BOARD members to undertake the work of review. Any disapproval or deletion must be approved by a majority of the sub-committee members so designated. After receipt of the written decision of the sub-committee, a motion for reconsideration in writing may be made, upon which the Chairman of the Board shall designate a sub-committee of five BOARD members to undertake a second review session, whose decision on behalf of the Board shall be rendered through a majority of the sub-committee members so designated and present at the second review session. This second review session shall be presided over by the Chairman, or the Vice-Chairman. The decision of the BOARD in the second review session shall be rendered within five (5) days from the date of receipt of the motion for reconsideration. Every decision of the BOARD disapproving a motion picture, television program or publicity material for exhibition in the Philippines must be in writing, and shall state the reasons or grounds for such disapproval. No film or motion picture intended for exhibition at the moviehouses or theaters or on television shall be disapproved by reason of its topic, theme or subject matter, but upon the merits of each picture or program considered in its entirety. The second decision of the BOARD shall be final, with the exception of a decision disapproving or prohibiting a motion picture or television program in its entirety which shall be appealable to the President of the Philippines, who may himself decide the appeal, or be assisted either by an ad hoe committee he may create or by the Appeals Committee herein created. An Appeals Committee in the Office of the President of the Philippines is hereby created composed of a Chairman and four (4) members to be appointed by the President of the Philippines, which shall submit its recommendation to the President. The Office of the Presidential Assistant for Legal Affairs shall serve as the Secretariat of the Appeals Committee. The decision of the President of the Philippines on any appealed matter shall be final. Implementing Rules and Regulations Sec 11. Review by Sub-Committee of Three. a) A proper application having been filed, the Chairman of the Board shall, as the exigencies of the service may permit, designate a Sub-Committee of at least three Board Members who shall meet, with notice to the applicant, within ten days from receipt of the completed application. The Sub-Committee shall then preview the motion picture subject of the application. b) Immediately after the preview, the applicant or his representative shall withdraw to await the results of the deliberation of the Sub-Committee. After reaching a decision, the Sub-Committee shall summon the applicant or his representative and inform him of its decision giving him an opportunity either to request reconsideration or to offer certain cuts or deletions in exchange for a better classification. The decision shall be

in writing, stating, in case of disapproval of the film or denial of the classification rating desired or both, the reason or reasons for such disapproval or denial and the classification considered by the Sub-Committee member dissenting from the majority opinion may express his dissent in writing. c) The decision including the dissenting opinion, if any, shall immediately be submitted to the Chairman of the Board for transmission to the applicant. Sec 12. Review by Sub-Committee of Five. Within five days from receipt of a copy of the decision of the Sub-Committee referred to in the preceding section, the applicant may file a motion for reconsideration in writing of that decision. On receipt of the motion, the Chairman of the Board shall designate a Sub-Committee of Five Board Members which shall consider the motion and, within five days of receipt of such motion, conduct a second preview of the film. The review shall, to the extent applicable, follow the same procedure provided in the preceding section. Sec 13. Reclassification. An applicant desiring a change in the classification rating given his film by either the Sub-Committee of Three? or Committee of Five mentioned in the immediately preceeding two sections may re-edit such film and apply anew with the Board for its review and reclassification. Sec 14. Appeal. The decision of the Committee of Five Board Members in the second review shall be final, with the exception of a decision disapproving or prohibiting a motion picture in its entirety which shall be appealable to the President of the Philippines who may himself decide the appeal or refer it to the Appeals Committee in the Office of the President for adjudication. On the other hand, the powers and functions of the MTRCB Chairman are found in Section 5 of the same decree as follows: Sec. 5. Executive Officer. The Chairman of the BOARD shall be the Chief Executive Officer of the BOARD. He shall exercise the following functions, powers and duties: (a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued by the BOARD; (b) Direct and supervise the operations and the internal affairs of the BOARD; (c) Establish the internal organization and administrative procedures of the BOARD, and recommend to the BOARD the appointment of the necessary administrative and subordinate personnel; and (d) Exercise such other powers and functions and perform such duties as are not specifically lodged in the BOARD. It is at once apparent from a reading of the above provisions of PD 1986 that respondent Morato, as Chairman of the MTRCB, is not vested with any authority to reverse or overrule by himself alone a decision rendered by a committee which conducted a review of motion pictures or television programs.

The power to classify motion pictures into categories such as "General Patronage" or "For Adults Only" is vested with the respondent Board itself and not with the Chairman thereof (Sec. 3 [e], PD 1986). As Chief Executive Officer, respondent Morato's function as Chairman of the Board calls for the implementation and execution, not modification or reversal, of the decisions or orders of the latter (Sec. 5 [a], Ibid.). The power of classification having been reposed by law exclusively with the respondent Board, it has no choice but to exercise the same as mandated by law, i.e., as a collegial body, and not transfer it elsewhere or discharge said power through the intervening mind of another. Delegata potestas non potest delegari a delegated power cannot be delegated. And since the act of classification involves an exercise of the Board's discretionary power with more reason the Board cannot, by way of the assailed resolution, delegate said power for it is an established rule in administrative law that discretionary authority cannot be a subject of delegation. WHEREFORE, the instant petition is GRANTED. Resolution Nos. 10-89 and 88-1-25 issued by the respondent Board are hereby declared null and void. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Medialdea, Regalado and Davide, Jr., JJ., concur. Grio-Aquino and Romero, JJ., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 170516 July 16, 2008

AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners, vs. THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead negotiator for Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as Assistant Director-General of the National Economic Development Authority (NEDA) and lead negotiator for Trade in Services and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary for International Economic Relations of the DFA and lead negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of Customs and lead negotiator for Customs Procedures and

Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the Board of Investments and lead negotiator for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the Government Procurement Policy Board Technical Support Office, the government agency that is leading the negotiations on Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents. DECISION CARPIO MORALES, J.: Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the present petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 ("Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Agreement")1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005, replied that the Congressman shall be provided with a copy thereof "once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted." In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject including the latest draft of the proposed agreement, the requests and offers etc."2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows: In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis supplied)

Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA. Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy "once the negotiation is completed." And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be "in the best position to respond" to the request. In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the documents.3 Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was filed on December 9, 2005.4 The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.5 While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,6respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply when the JPEPA was still being negotiated the initial drafts thereof were kept from public view. Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first resolve some material procedural issues. Standing For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.7 Respondents deny that petitioners have such standing to sue. "[I]n the interest of a speedy and definitive resolution of the substantive issues raised," however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need for a "personal stake in the outcome of the controversy" on questions of standing. In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right.9 As the present petition is anchored on the right to

information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. Mootness Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties,"10 public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz: Article 164 Entry into Force This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.11 (Emphasis supplied) President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met prior to the agreements entry into force. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the "full text" thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.12 A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the Philippine and Japanese offers, is thus in order. Grounds relied upon by petitioners Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern13 and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest.14 Second, they contend that non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making.15 Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation of powers. Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not. The JPEPA is a matter of public concern To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.16(Underscoring supplied) From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Respondents claim of privilege It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estates Authority,19 and most recently in Senate v. Ermita20where the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope. Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.21 In the present case, the ground for respondents claim of privilege is set forth in their Comment, viz: x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary. The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence.

Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied) The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress. Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest."23 Even earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.25 The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: "A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)." xxxx There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the

negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the President is the sole organ of the nation in its negotiations with foreign countries, viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives,"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original) Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be "ample opportunity for discussion before [a treaty] is approved" the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that "historic confidentiality"27 would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.: x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to "grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if "negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in return for peace.28 (Emphasis supplied) Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the present case. Arguments proffered by petitioners against the application of PMPF v. Manglapus Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions between the two. To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress thatPMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure. Petitioners argument betrays a faulty assumption that information, to be considered privileged, must involve national security. The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of "executive privileges," cautions against such generalization. While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the "informers privilege," or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law.30 The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most highprofile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general. Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied) In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that "the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing." 32 This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.33 Closely related to the "presidential communications" privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests,not on the need to protect national security but, on the "obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news," the objective of the privilege being to enhance the quality of agency decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&fn=_top&s v=Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35 The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as "the sole organ of the nation in its external relations, and its sole representative with foreign nations." And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury37enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.-French taxtreaty negotiations. Among the points noted therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be "working law" as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate. The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the preagreement positions of the French negotiators might well offend foreign governments and would lead to less candor by the U. S. in recording the events of the negotiations process. As several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily. Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21,

1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied) Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative38 where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement the same district court, this time under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of the information being sought. Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the district court did not apply the same would help illumine this Courts own reasons for deciding the present case along the lines of Fulbright. In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making process.40 Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two cases, based his decision on what he perceived to be a significant distinction: he found the negotiators notes that were sought inFulbright to be "clearly internal," whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman found that "Judge Green's discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not interagency, and the Court does not reach the question of deliberative process." (Emphasis supplied) In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct factual setting. Whether this conclusion was valid a question on which this Court would not pass the ruling inFulbright that "[n]egotiations between two countries to draft a treaty represent a true example of a deliberative process" was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative process. Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances ofCIEL than those of Fulbright. Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbrightthat the public policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character. It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement of FOIA Exemption 5 that the documents be inter-agency was

not met. In determining whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on them. In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider as the CIEL court did if these negotiations fulfill a formal requirement of being "inter-agency." Important though that requirement may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international negotiations. There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus. A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the House of Representatives who invoke their right to information not just as citizens but as members of Congress. Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations of international trade agreements from the Executive branch, a matter which was not raised inPMPF v. Manglapus. While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where the demand for information has come from members of Congress, not only from private citizens. The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. Theprobability of the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether. The Courts statement in Senate v. Ermita that "presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informers privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,"41 implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for information, but also in the context of legislative investigations. Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding.

As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that "the socio-political and historical contexts of the two cases are worlds apart." They claim that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the "incompatibility hypothesis," while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation.42 Without delving into petitioners assertions respecting the "incompatibility hypothesis," the Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed that "[a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides" no longer "lead[s] to widespread propaganda to block the negotiations," or that parties in treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge. Whether the privilege applies only at certain stages of the negotiation process Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process." They argue, however, that the same is privileged "only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public."43 They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of definite propositions or official recommendations, citingChavez v. PCGG44 and Chavez v. PEA.45 The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the government" does not apply to diplomatic negotiations: We rule, therefore, that the constitutional right to information includes official information on on-going negotiationsbefore a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. x x x46 (Emphasis and underscoring supplied) It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under "recognized exceptions." The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority. Whether there is sufficient public interest to overcome the claim of privilege It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public interest sufficient to overcome the privilege in this instance. To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the

reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. 47 The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50 U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal justice. x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A Presidents acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice.Without access to specific facts a criminal prosecution may be totally frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied) Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its legislative functions. The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government-a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x xxxx The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. x x x (Emphasis and underscoring supplied) In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated: The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the

role of the government," and the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied) Petitioners have failed to present the strong and "sufficient showing of need" referred to in the immediately cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard. Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers exchanged during the negotiations since only through such disclosure can their constitutional right to effectively participate in decision-making be brought to life in the context of international trade agreements. Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as "woefully selective and inadequate."53 AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners claim, essential to their right to participate in decision-making. The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, "ample opportunity for discussion before [the treaty] is approved." The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. It is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet.54 Given these developments, there is no basis for petitioners claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making. Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides: (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the Executive Department which states: No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held: By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether." As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powersgranted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and underscoring supplied) The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treatymaking, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied) While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at

least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 146458 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives fail to present a "sufficient showing of need" that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Respondents alleged failure to timely claim executive privilege On respondents invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was raised only in their Comment to the present petition and not during the House Committee hearings. That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it. When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the information being sought. Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of respect for their office until resort to it becomes necessary, the fact remains that

such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. The privilege is an exemption to Congress power of inquiry.59 So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof. The Court observes, however, that the claim of privilege appearing in respondents Comment to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary "by order of the President."60 Respondents claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase "by order of the President," shall be considered as partially complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase "by order of the President" should accompany the Executive Secretarys claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their Comment to the petition.61 A strict application of this requirement would thus be unwarranted in this case. Response to the Dissenting Opinion of the Chief Justice We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above. 1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent concludes that "it will be turning somersaults with history to contend that the President is the sole organ for external relations" in that jurisdiction. With regard to this opinion, We make only the following observations: There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations" which is not being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Thus, the dissent states that "Congress has the power to regulate commerce with foreign nations but does not have the power to negotiate international agreements directly."62 What is disputed is how this principle applies to the case at bar. The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents.

On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63 and in other cases both before and since should be applied: This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT Law useless for what it seeks to achieve - to make use of the resources of the private sector in the "financing, operation and maintenance of infrastructure and development projects" which are necessary for national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time.64 Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of giving them access to the offers exchanged between the Japanese and Philippine delegations would have made a mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why the U.S. Constitution excludes the House of Representatives from the treatymaking process: x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.65 These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded.66 Much less, therefore, should it be inferred that the House of Representatives has this power. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to protect, the subject documents should not be disclosed. 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations were still pending;

In their Comment, respondents contend that "the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality." That respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds true with respect to working drafts of opinions, which are comparable to intra-agencyrecommendations. Such intra-agency recommendations are privileged even after the position under consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the interagency and intra-agency communications during the stage when common assertions are still being formulated.67 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. Again, We disagree. The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions. Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon68 held, the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed to do. Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent. In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need.

When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for the information sufficient to overcome the privilege. They have not, however. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege "by order of the President," the same may not be strictly applied to the privilege claim subject of this case. When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a President must personally invoke the [presidential communications] privilege remains an open question." U.S. v. Reynolds,71 on the other hand, held that "[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does so "by order of the President," is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v. Ermitabecame final. 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in citing US v. Curtiss Wright72 and the book entitled The New American Government and Its Work73since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting. The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power over the conduct of foreign affairs and the citizens right to information. That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic negotiations againstcongressional demands for information in the course of laying down a ruling on the public right to information only serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimedunder different circumstances. PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [publics] right to information . . . does not extend to matters recognized as privileged information under the separation of powers." What counts as privileged information in an executive-legislative conflict is thus also recognized as such in cases involving the publics right to information. Chavez v. PCGG75 also involved the publics right to information, yet the Court recognized as a valid limitation to that right the same privileged information based on separation of powers closed-door

Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court. These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other. The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding. Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present danger" test for the assessment of claims of privilege against citizens demands for information. If executive information, when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive information than it would be for private citizens. We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a "strong showing of need," whether that party is Congress or a private citizen. The rule that the same "showing of need" test applies in both these contexts, however, should not be construed as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in every particular instance is highly significant in determining whether to uphold a claim of privilege. This "need" is, precisely, part of the context in light of which every claim of privilege should be assessed. Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wrightcase. The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken into account the expanded statutory right to information in the FOIA assumes that the observations in that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best, speculative. As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the importance of the right of access to information in the Philippine setting considering its elevation as a constitutional right," we submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of executive privilege which is itself constitutionallybased.76 Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.

6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term "need." In executive privilege controversies, the requirement that parties present a "sufficient showing of need" only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent, applied just such a test. Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test to the present controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in thisponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement is on the results of applying that test in this instance. The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be covered by the right, regardless of the publics need for the information," and that the same would hold true even "if they simply want to know it because it interests them." As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. However, when the Executive has as in this case invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then explain itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain persons simply wanted to know it "because it interests them." Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific "showing of need" for such information is not a relevant consideration, but only whether the same is a matter ofpublic concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.79 7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can exercise theirright to participate in the discussion whether the Senate should concur in its ratification or not." (Emphasis supplied) It adds that this right "will be diluted unless the people can have access to the subject JPEPA documents". What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the qualified nature of the publics

right to information. It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents. Thus, we hold that the balance in this case tilts in favor of executive privilege. 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such contexts. Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services80 which involved former President Nixons invocation of executive privilege to challenge the constitutionality of the "Presidential Recordings and Materials Preservation Act"81 and the above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation. Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability82 a case involving an executive-legislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between the Presidents generalized interest in confidentiality and congressional demands for information, "[n]onetheless the [U.S.] Court laid down principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar."83 While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution of the present controversy, notwithstanding the difference in context. Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance. Conclusion To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become moot and academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied, respondents claim of executive privilege being valid. Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by

petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners both private citizens and members of the House of Representatives have failed to present a "sufficient showing of need" to overcome the claim of privilege in this case. That the privilege was asserted for the first time in respondents Comment to the present petition, and not during the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch. For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary "by order of the President." WHEREFORE, the petition is DISMISSED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice LEONARDO A. QUISUMBING Associate Justice CONSUELO YNARES- SANTIAGO Associate Justice RENATO C. CORONA Associate Justice DANTE O. TINGA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice RUBEN T. REYES Associate Justice ANTONIO T. CARPIO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice ADOLFO S. AZCUNA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes
*

In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the portion for "Respondents," to wit: "HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et al." (Underscoring supplied) The other respondents are enumerated in the body of the petition. (Rollo, pp. 20-23) The Court motu proprio included the names of these other respondents in the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil Procedure, as well as the capacities in which they are being sued. Moreover, it inserted therein that respondent Usec. Aquino, as stated in the petition, is also being sued in his capacity as DTI Undersecretary.
1

Effective May 28, 2003. Annex "F" of Petition, rollo, p. 95.

The Petition quoted the following statement of Congressman Teves appearing in the transcript of the Committee hearing held on October 12, 2005: THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate to this body the positive as well as the negative impact of said agreement. Is this the draft that the government will sign in December or this will still be subjected to revisions in the run-up to its signing? x x x We requested also to subpoena this but then the Speaker requested me to hold in abeyance because he wanted to get a (sic) consent of the President before we can x x x the department can furnish us a copy of this agreement. (Rollo, p. 32)
4

Id. at 16. Annex "A," Comment, rollo, p. 207.

Respondents Manifestation dated September 12, 2007; vide "Business Philippines: A Department of Trade and Industry Website" at www.business.gov.ph, particularly www.business.gov.ph/DTI_News.php?contentID=136 (visited August 9, 2007).
6 7

Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535.
8

G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631. Supra note 7 at 536.

10

Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied).

11

Business Philippines: A Department of Trade and Industry Website,http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007.
12

By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine and Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if not, whether petitioners still intend to pursue their prayer to be provided with copies thereof. In compliance, petitioners manifested that the offers have not yet been made public and reiterated their prayer that respondents be compelled to provide them with copies thereof, including all pertinent attachments and annexes thereto (Manifestation and Motion dated September 17, 2007). Respondents, on the other hand, asserted that the offers have effectively been made accessible to the public since September 11, 2006 (Manifestation dated September 12, 2007). Respondents claim does not persuade, however. By their own manifestation, the documents posted on the DTI website on that date were only the following: (1) Joint Statement on the Occasion of the Signing of the Agreement between Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its annexes, (3) the JPEPA implementing Agreement, and (4) "resource materials on the JPEPA including presentations of the [DTI] during the hearings of the Senates Committee on Trade and Commerce and Committee on Economic Affairs." While these documents no doubt provide very substantial information on the JPEPA, the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers, has not become moot.
13

Constitution, Art. III, Sec. 7. Id. at Art. II, Sec. 28. Id. at Art. XIII, Sec. 16. Supra note 7 at 541. 314 Phil. 150 (1995). 360 Phil. 133 (1998). 433 Phil. 506 (2002). G.R. No. 169777, April 20, 2006, 488 SCRA 1. Id. at 51. Rollo, pp. 191-192. 360 Phil. 133, 764 (1998), citing V Record Of The Constitutional Commission 25 (1986). G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988.

14

15

16

17

18

19

20

21

22

23

24

25

Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their negotiations/sessions with the U.S. counterparts on the agreement; (2)

reveal and/or give petitioners access to the items which they have already agreed upon; and (3) reveal and/or make accessible the respective positions on items they have not agreed upon, particularly the compensation package for the continued use by the U.S. of their military bases and facilities in the Philippines.
26

299 U.S. 304 (1936).

27

Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter from the Inland Revenue of the United Kingdom to the associate commissioner of the Internal Revenue Service (IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs, Commissioner of IRS, which stated that the production of the letter "would impair the United States government's ability to deal with the tax authorities of foreign governments * * * by breaching the historic confidentiality of negotiations between the United States and foreign sovereigns * * *." (Emphasis supplied) The U.S. court therein ruled thus: "Given the context in which the letter in question was written, it is reasonable to conclude that frank and honest expression of views on the treaty language in issue were expressed, views that ostensibly were expressed in the belief that "historic confidentiality" would govern such expressions." (Underscoring supplied)
28

B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D., 1961, Yale University, The Occasions Of Secrecy (47 U. Pitt. L. Rev. 579).
29

Supra note 20 at 46. Ibid. Supra note 19 at 189.

30

31

32

Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183.
33

Vide Arnault v. Nazareno, 87 Phil. 29, 46 (1950): "In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not challenged by the petitioner; and we entertain no doubt as to the Senates authority to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the constitutional guardian. x x x"
34

421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.
35

Id. at 151, 95 S.Ct. 1504 (emphasis supplied). Supra note 24. 545 F.Supp. 615, May 28, 1982. 237 F.Supp.2d 17. 5 U.S.C. 552(b)(5).

36

37

38

39

40

CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060: "Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. 552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it."
41

Supra note 20 at 46 (emphasis supplied). Petitioners expound as follows: "It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that span of time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant hostilities, and ushering in a new era of globalization and international economic cooperation as we know it. The Philippines now finds itself part of an international economic community as a member of both the ASEAN Free Trade Area (AFTA) and the World Trade Organization (WTO). Domestically, this Honorable Court has repeatedly upheld the peoples right to information on matters of public concern, allowing ordinary Filipino citizens to inquire into various government actions such as GSIS loans to public officials, settlement of Marcos ill-gotten wealth, and sale of reclaimed land to foreign corporations." (Rollo, p. 326)

42

43

Rollo, pp. 50-51. Supra note 18. Supra note 19.

44

45

46

433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note 18.
47

In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: "Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the President's confidentiality in a particular context with those furthered by requiring disclosure." (Emphasis supplied)
48

418 U.S. 683 (1974). Supra note 31. Supra note 47. Supra note 32 Supra note 47.

49

50

51

52

53

Rollo, p. 349.

54

For a small sampling, vide "Primer sa Japan-Philippine Economic Partnership Agreement" (JPEPA) atwww.bayan.ph/downloads/Primer%20on%20jpepa.pdf; "A RESOLUTION EXPRESSING SUPPORT TO THE CALLS FOR THE SENATE TO REJECT THE JAPANPHILIPPINES PARTNERSHIP AGREEMENT (JPEPA)" atwww.nccphilippines.org/indexfiles/Page1562.htm; "JPEPA Ratification: Threat Economics" at http://www.aer.ph/index.php?option/=com_content&task=view&id=632&Itemid=63 (all sites visited on February 2, 2008).
55

Entitled "A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS LAWS OF THE PHILIPPINES," promulgated June 11, 1978. In light of the arguments of petitioners, the most salient portion of the provisions cited by them is Section 402(1) which states, in part: "For the purpose of expanding foreign markets x x x in establishing and maintaining better relations between the Philippines and other countries, the President is authorized from time to time: (1.1) To enter into trade agreements with foreign governments or instrumentalities thereof; x x x"
56

396 Phil. 623, 663 (2000). G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633. Supra note 55. G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44. Id. at 68.

57

58

59

60

61

According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21, 2006. Respondents filed their Comment on May 15, 2006.
62

Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied). 450 Phil. 744 (2003), penned by then Associate Justice Puno. Id., at 833 (Italics in the original, emphasis and underscoring supplied) The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied).

63

64

65

66

Article II Section 2 of the U.S. Constitution states: "He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur x x x". (Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the Philippine Constitution states: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."
67

Supra note 18. 162 U.S. App.D.C. 183, 189.

68

69

365 F.3d 1108, 361 U.S.App.D.C. 183 (2004). Supra note 47. 345 U.S. 1, 73 S.Ct. 528 (1953) Supra at note 63. Supra at note 64. Supra note 19. Supra at note 18.

70

71

72

73

74

75

76

U.S. v. Nixon (418 U.S. 683) states: "Nowhere in the Constitution x x x is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a Presidents powers, it is constitutionally based." (Emphasis, italics and underscoring supplied)
77

In re Sealed Case (121 F.3d 729) states thus: "Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the Presidents confidentiality in a particular context with those furthered by requiring disclosure." (Emphasis and underscoring supplied)
78

G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno. In that case, respondent Mark Jimenez claimed under the due process clause the right to notice and hearing in the extradition proceedings against him. Consider the following enlightening disquisition of the Court: "In the case at bar, on one end of the balancing pole is the private respondents claim to due processpredicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life, liberty, or property without due process of law" Without a bubble of a doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. "This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States of persons charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers. "Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the governmentthru the petitioner Secretary of Justice. x x x (Emphasis, italics, and underscoring supplied)

79

Constitution, Art. XIII, Sec. 16. 433 U.S. 425. 88 Stat. 1695. G.R. No. 180643, March 25, 2008. Emphasis supplied.

80

81

82

83

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION PUNO, C.J.: Some 22,000 years ago, the homo sapiens in the Tabon caves of Palawan gathered food, hunted, and used stone tools to survive. Advancing by thousands of years, the early inhabitants of our land began to trade with neighboring countries. They exchanged wax, rattan, and pearls for porcelain, silk, and gold of China, Indo-China, and Malaysia.1The 16th century then ushered in the galleon trade between Manila and Acapulco. The 1700s saw the genesis of the Filipino trading with the British, followed by the German and the French in the 1800s. The 1900s opened commerce between the Philippines and the United States of America.2 Today, with the onset of globalization of the economy and the shrinking of the world through technology, a far more complicated international trade has become a matter of survival - much like gathering food and hunting 22,000 years ago - to both countries and individuals. The growth and development envisioned by globalization are premised on the proposition that the whole world economy would expand and become more efficient if barriers and protectionist policies are eliminated. Expansion will happen as each country opens its doors to every other producer, and more efficient producers start to compete successfully with countries that produce at higher costs because of special protections that domestic laws and regulations provide. Smaller countries and small enterprises will then concentrate their resources where they can be most competitive. The logic is that ultimately, the individual consumer will benefit and lower cost will stimulate consumption, thus increasing trade and the production of goods and services where it is economically advantageous.3 Not a few world leaders, however, have cautioned against the downside of globalization. Pope John Paul II observed that "(g)lobalization has also worked to the detriment of the poor, tending to push poorer countries to the margin of international economic and political relations. Many Asian nations are unable to hold their own in a global market economy."4 Mahatma Gandhis words, although referring to infant industrialization, are prescient and of similar import: "The world we must strive to build needs to be based on the concept of genuine social equalityeconomic progress cannot mean that few people charge ahead and more and more are left behind." The key to resolving the decisive issue in the case at bar turns on the proper framework of analysis. The instant case involves primarily not an assessment of globalization and international trade or of the extent of executive privilege in this global arena, but a valuation of the right of the individual and

his representatives in Congress to participate in economic governance. Economic decisions such as forging comprehensive free trade agreements impact not only on the growth of our nation, but also on the lives of individuals, especially those who are powerless and vulnerable in the margins of society. First, the facts. In 2002, Japanese Prime Minister Junichiro Koizumi introduced the "Initiative for Japan-ASEAN Comprehensive Economic Partnership."5 President Gloria Macapagal-Arroyo proposed the creation of a working group to study the feasibility of an economic partnership with Japan.6 In October of that year, the Working Group on the Japan-Philippine Economic Partnership Agreement (JPEPA) was formed, consisting of representatives from concerned government agencies of the Philippines and Japan. It was tasked to study the possible coverage and content of a mutually beneficial economic partnership between the two countries.7
1avv phi 1

On 28 May 2003, the Philippine Coordinating Committee (PCC), composed of representatives from eighteen (18) government agencies, was created under Executive Order No. 213. It was tasked to negotiate with the Japanese representatives on the proposed JPEPA, conduct consultations with concerned government and private sector representatives, and draft a proposed framework for the JPEPA and its implementing agreements.8 In June 2003, the Working Group signified that both countries were ready to proceed to the next level of discussions and thus concluded its work. The Joint Coordinating Team (JCT) for JPEPA, composed of representatives from concerned government agencies and the private sector, was then created.9 On 11 December 2003, Prime Minister Koizumi and President Macapagal-Arroyo agreed that the Japanese and Philippine governments should start negotiations on JPEPA in 2004 based on the discussions and outputs of the Working Group and the Joint Coordinating Team. In February 2004, negotiations on JPEPA commenced.10 On 25 January 2005, petitioners Congressman Lorenzo R. Taada III and Congressman Mario Joyo Aguja jointly filed House Resolution No. 551, "Directing the Special Committee on Globalization to Conduct an Urgent Inquiry in Aid of Legislation on Bilateral Trade and Investment Agreements that Government Has Been Forging, with Far Reaching Impact on Peoples Lives and the Constitution But with Very Little Public Scrutiny and Debate."11 In the course of the inquiry conducted by the Special Committee on Globalization (Committee), respondent DTI Undersecretary Thomas G. Aquino was requested to furnish the Committee a copy of the latest draft of the JPEPA. Respondent Undersecretary Aquino was the Chairperson of the PCC. He did not accede to the request.12 On 10 May 2005, Congressman Herminio G. Teves, as Chairperson of the Special Committee on Globalization, wrote to respondent Executive Secretary Eduardo Ermita, requesting that the Committee be furnished all documents on the JPEPA, including the latest drafts of the agreement, the requests and the offers.13 Executive Secretary Ermita wrote Congressman Teves on 23 June 2005, informing him that the DFA would be unable to furnish the Committee all documents on the JPEPA, since the proposed agreement "has been a work in progress for about three years." He also said that a copy of the draft agreement would be forwarded to the Committee "as soon as the text thereof is settled and complete."14 On 1 July 2005, petitioner Congressman Aguja, as member of the Committee, wrote NEDA DirectorGeneral Romulo Neri and respondent Tariff Commission Chairperson Abon to request copies of the latest text of the JPEPA. Respondent Chairperson Abon wrote petitioner Congressman Aguja on 12

July 2005 that the former did not have a copy of the document being requested. He also stated that "the negotiation is still ongoing" and that he was certain respondent Undersecretary Aquino would provide petitioner Congressman Aguja a copy "once the negotiation was completed."15 For its part, NEDA replied through respondent Assistant Director-General Songco that petitioner Congressman Agujas request had been forwarded to the office of respondent Undersecretary Aquino, who would be in the best position to respond to the request.16 In view of the failure to furnish the Committee the requested document, the Committee resolved to subpoena the records of the DTI with respect to the JPEPA. However, House Speaker Jose de Venecia requested the Committee to hold the subpoena in abeyance, as he wanted to secure first the consent of President Macapagal-Arroyo to furnish the Committee a copy of the JPEPA.17 On 25 October 2005, petitioner Congressman Aguja, as member of the Committee, wrote to the individual members of the PCC, reiterating the Committees request for an update on the status of the JPEPA negotiations, the timetable for the conclusion and signing of the agreement, and a copy of the latest working draft of the JPEPA.18None of the members provided the Committee the requested JPEPA draft. In his letter dated 2 November 2005, respondent Undersecretary Aquino replied that the Committee would be provided the latest draft of the agreement "once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted."19 As the Committee has not secured a copy of the full text of the JPEPA and its attachments and annexes despite the Committees many requests, petitioners filed the instant Urgent Petition for Mandamus and Prohibition on 9 December 2005. They pray that the Court (1) order respondents to provide them the full text of the JPEPA, including the Philippine and Japanese offers and all pertinent attachments and annexes thereto; and (2) restrain respondents from concluding the JPEPA negotiations, signing the JPEPA, and transmitting it to the President until said documents have been furnished the petitioners. On 17 May 2006, respondents filed their Comment. Petitioners filed their Reply on 5 September 2006. On 11 September 2006, a certified true copy of the full text of the JPEPA signed by President Macapagal-Arroyo and Prime Minister Koizumi with annexes and the implementing agreement was posted on the website of the Department of Trade and Industry and made accessible to the public.20 Despite the accessibility of the signed full text of the JPEPA, petitioners reiterated in their Manifestation and Motion filed on 19 September 2007 their prayer that respondents furnish them copies of the initial offers (of the Philippines and of Japan) of the JPEPA, including all pertinent attachments and annexes thereto, and the final text of the JPEPA prior to signing by the President (the "subject JPEPA documents").21 I respectfully submit that the ponencia overlooks the fact that it is the final text of the JPEPA prior to its signing by the President that petitioners seek to access when the ponencia holds at the outset, viz: Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties," (Reply to the Comment of the Solicitor General, rollo, p. 319 [underscoring supplied]) public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. xxx xxx xxx

The text of the JPEPA having been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the "full text" thereof.22 (emphasis supplied) Thus, insofar as petitioners access to the final text of the JPEPA prior to signing by the President is concerned, the ponencia failed to include the same among the issues for the Court to resolve. The issues for resolution in the case at bar are substantive and procedural, viz: I. Do petitioners have standing to bring this action for mandamus in their capacity as citizens of the Republic, taxpayers and members of Congress? II. Does the Court have jurisdiction over the instant petition? III. Do petitioners have a right of access to the documents and information being requested in relation to the JPEPA? IV. Will petitioners right to effective participation in economic decision-making be violated by the deferral of the public disclosure of the requested documents until such time that the JPEPA has been concluded and signed by the President? I shall focus on the jugular issue of whether or not petitioners have a right of access to the subject JPEPA documents. Let me first take up petitioners demand for these documents as members of the House of Representatives. I. The context: the question of access of the members of the House of Representatives to the subject JPEPA documents is raised in relation to international trade agreement negotiations In demanding the subject JPEPA documents, petitioners suing as members of the House of Representatives invoke their power over foreign trade under Article VI, Section 28 (2) of the 1987 Constitution which provides, viz: Sec. 28 (2). The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (emphasis supplied) Respondents, on the other hand, deny petitioners demand for information by contending that the President is the sole organ of the nation in external relations and has sole authority in the negotiation of a treaty; hence, petitioners as members of the House of Representatives cannot have access to the subject JPEPA documents.23 On closer examination, respondents contention can be reduced into two claims: (1) the executive has sole authority in treaty negotiations, hence, the House of Representatives has no power in relation to treaty negotiations; and (2) the information and documents used by the executive in treaty negotiations are confidential. To buttress their contention, which the ponencia upholds, respondents rely on United States v. Curtiss-Wright Export Corporation,24 a case that has become a classic authority on recognizing executive primacy or even exclusivity in foreign affairs in the U.S.25 and in the Philippines.26 They also cite Peoples Movement for Press Freedom (PMPF) v. Manglapus, the only Philippine case

wherein the Court, in an unpublished Resolution, had occasion to rule on the issue of access to information on treaty negotiations. PMPF v. Manglapus extensively quoted Curtiss-Wright, viz: In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate, among other things, as follows: The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch. 8 U.S. Sen. Reports Comm. on Foreign Relations, p. 24. It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment -perhaps serious embarrassment- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has never since been doubted.27 (emphasis supplied) In examining the validity of respondents contention and the ponencias affirmation thereof, that the executive has sole authority in treaty negotiations, and that information pertaining to treaty negotiations is confidential, let me begin by tracing respondents and the ponencias steps back to U.S. jurisdiction as they heavily rely on Curtiss-Wright, which was quoted in PMPF v. Manglapus, for their position. In the U.S., there is a long-standing debate on the locus of the primary or even exclusive power over foreign affairs.28 Ironically, while Curtiss-Wright is considered a most influential decision on asserting presidential primacy in foreign affairs, the issue in that case was the validity of Congress delegation of its foreign affairs power to the President; President Franklin D. Roosevelt ordered an embargo on

ammunition sales to two South American countries in execution of a Joint Resolution of Congress. Towards the end of the ponencia, Justice Sutherland stated that "it was not within the power of the President to repeal the Joint Resolution."29 The oft-quoted "sole organ" remark in Curtiss-Wright has not a few times been regarded in the U.S. as dictum in that case.30 I make this observation to caution against over-reliance on Curtiss-Wright, but the case at bar is not the occasion to delve into and settle the debate on the locus of the primary power in the broad area of foreign affairs. In this vast landscape, I shall limit my view only to the subject matter of the instant case -- the openness or secrecy of treaty negotiations and, more particularly, of trade agreement negotiations. Aside from the fact that Curtiss-Wright did not involve treaty negotiations, much less trade agreement negotiations, that case was decided in 1936 or more than 70 years ago. Since then, the dynamics of the allocation of power over international trade agreements between the executive and the legislature has dramatically changed. An appreciation of these developments would provide a useful backdrop in resolving the issue of access to the subject JPEPA documents. A. Negotiation of trade agreements: the question of power allocation between the executive and Congress in U.S. jurisdiction The U.S. constitution is a good place to start in understanding the allocation of power over international trade agreements between the executive and the legislative branches of government. Article II of the U.S. Constitution grants the President the power to make treaties, but only with the approval of a super-majority of the Senate.31 Under Article I, Congress has the power to regulate foreign trade,32 including the power to "lay and collect Taxes, Duties, Imposts and Excises."33 While the drafters of the U.S. Constitution discussed the commerce power and the power to make treaties,34 there is scant information on how they intended to allocate the powers of foreign commerce between the political branches of government.35 "The well-recognized utility of Congressional involvement in treaty and international agreement negotiation applies with even greater force when it comes to international trade. For here, the making of international agreements intersects with the Constitutions express grant of authority to Congress to regulate commerce with foreign nations." (emphasis supplied)36 The drafters of the Constitution gave the President power to negotiate because of the need to demonstrate clear leadership and a unified front when dealing with other nations.37 The Senate was given the power to ratify treaties because, as the more "contemplative" arm of the legislature, it was less subject to short-term interests than the House while still directly representing the interests of the people.38 Congress was granted the power to set tariffs and to regulate commerce in order to check the powers of the Executive.39 Thus, under the U.S. Constitution, the President has the power to negotiate international treaties, but does not have the constitutional authority to regulate commerce or to determine tariffs and duties. On the other hand, Congress has the power to regulate commerce with foreign nations, but does not have the power to negotiate international agreements directly.40 That there is a question on the demarcation of powers between the President and Congress in international trade agreements cannot escape the eye. Throughout U.S. history, answers to this question have come in various permutations. In the late 1700s, after the U.S. established its independence, it had a weak military and relied on trade policies to maintain its independence and guard its national security through restriction of

imports or exports with offending great powers.41 Congress implemented these trade policies through legislation42 and ratification of commercial treaties negotiated by the President.43 This continued in the 1800s the President negotiated treaties, including trade treaties, and secured the requisite Senate concurrence. 44 But beginning in the 1920s, Congress began to reassert its power over the development of international trade policy.45 It began passing protectionist legislation to respond to pressure from domestic industries and agriculture.46 In 1930, Congress passed the Smoot-Hawley Tariff Act of 1930,47 which increased tariffs to an average of fifty-three percent and increased the number of products subject to duties.48 In retaliation, other countries quickly subjected the U.S. to similar tariffs. In the mid-1930s, Congress realized that its setting of tariffs was at best inefficient49 and thus passed the Reciprocal Trade Agreement Act of 1934 (the 1934 Act).50 The 1934 Act allowed the President to reduce tariffs within guidelines prescribed by Congress.51 It permitted the President to issue a Presidential Proclamation enacting international agreements that lowered tariffs without any further action by Congress.52 Needless to state, the 1934 Act was a significant delegation of Congress power to set tariffs. But the Act had a limited lifespan and, with each extension of the Act, Congress issued more guidelines and restrictions on the powers it had delegated to the President.53 The modern period saw a drastic alteration in the U.S. approach to negotiating trade agreements.54 Instead of making additional changes to the 1934 Act, Congress passed the Trade Act of 1974 (the 1974 Act), which created modern procedures called the "fast track."55 Fast track legislation was enacted to address conflicts between the President and Congress.56 These conflicts stemmed from the presidential exercise of the executive trade agreement authority and the ordinary congressional approval procedures, which resulted in ongoing amendments and a slower, less reliable trade negotiation process.57 Fast track procedures were intended as a "consultative" solution to foreign trade disputes between Congress and the President.58 It was designed to benefit both branches of government by allowing congressional input into trade agreement negotiations while enabling "the President to guarantee to international trading partners that Congress will decide on the final agreement promptly."59 The 1974 Act broadened the scope of powers delegated to the President who was given the authority to make international trade agreements affecting both tariff and non-tariff barriers.60 With the 1974 Act, Congress delegated to the President both the power to set tariffs and the power to regulate commerce with foreign nations.61 But while the scope of the powers granted to the President was broader, the extent of the grant was limited. Unlike in the 1934 Act, Congress did not give the President the authority to enact international trade agreement by a simple proclamation.62 Instead, the President had to seek congressional approval.63 To facilitate approval, the fast track mechanism put in place procedures for congressional review of the agreement during the negotiation process.64The most significant feature of the fast track procedure was that Congress could only approve or disapprove, but not modify, the text of the agreement.65 This mechanism gave the President greater credibility when negotiating international agreements, because other countries knew that the agreements would not be subject to prolonged debates and drastic changes by Congress.66 In the 1980s, legislation made the fast track procedure increasingly complicated.67 The Trade and Tariff Act of 1984 added a requirement that the President consult with the House Ways and Means Committee and the Senate Finance Committee before giving notice of his intent to sign the agreement so that the committees could disapprove the negotiations before formal talks even began.68 Congress effectively retained a bigger portion of its constitutional authority over regulation

of international trade.69 In 1988, Congress passed the Omnibus Trade and Competitiveness Act of 1988.70 The Act further "enhance(d) Congress power in two respects: by reserving for either House the power to block extension of the Fast Track authority past the original expiration date and for both houses to derail already authorized agreements from the Fast Track."71 Aside from the House Ways and Means and Senate Finance Committees, the House Rules Committee was given the power to "derail" an extension of the fast track.72 The Act extended the fast-track for only three years.73 The fast track legislation saw its end in 1994.74 For the first time after fifty years, the executive branch was without authority to enter into international trade agreements except through treaties subject to Senate approval. Despite persistent attempts by President William J. Clinton and President George H.W. Bush to renew the fast track,75Congress refused to grant the executive branch the power to enter directly into international trade agreements from 1994 until August 2002.76 Finally, with the dawn of the new millennium, Congress enacted the Bipartisan Trade Promotion Authority Act of 2002 (Trade Act of 2002),77 which provided for a revised fast-track procedure under the new label, "trade promotion authority (TPA)."78 The Trade Act of 2002 was billed as "establish(ing) a partnership of equals. It recognizes that Congress constitutional authority to regulate foreign trade and the Presidents constitutional authority to negotiate with foreign nations are interdependent. It requires a working relationship that reflects that interdependence."79 (emphasis supplied) The purpose of the Act was to attempt again to resolve the ambiguity in the constitutional separation of powers in the area of international trade.80 The Trade Act of 2002 was intended for Congress to retain its constitutional authority over foreign trade while allowing performance by the President of the role of negotiatior,81 but with Congress keeping a closer watch on the President.82 Aside from providing strict negotiating objectives to the President, Congress reserved the right to veto a negotiated agreement.83 The Presidents power is limited by specific guidelines and concerns identified by Congress and his negotiations may address only the issues identified by Congress in the statute and must follow specific guidelines.84 Authorization to negotiate is given if the President determines that foreign trade is "unduly burden(ed) and restrict(ed)" and "the purposes, policies, priorities, and objectives of (the Trade Act of 2002) will be promoted" by the negotiations.85 The Act provides five additional limitations on the negotiation of agreements regarding tariff barriers.86 Negotiation of agreements regarding non-tariff barriers is subject to the objectives, limitations and requirement of consultation and notice provided in the Act.87 In addition, the President must notify Congress prior to initiating negotiations, in order for the final negotiated agreement to be eligible for TPA.88 The President is also required to consult Congress regarding the negotiations "before and after submission of the notice."89 The Act also requires the President to make specific determinations and special consultations with Congress in the areas of agriculture and textiles.90 As oversight to ensure that the President follows the guidelines laid out by Congress, the Trade Act of 2002 created a Congressional Oversight Group (COG) composed of members of Congress, in order to provide direct participation and oversight to trade negotiations initiated under the Act.91 The COG membership includes four members of the House Committee on Ways and Means, four members of the Senate Committee on Finance, and members of the committees of the House and the Senate, "which would have . . . jurisdiction over provisions of law affected by a (sic) trade agreement negotiations . . . ."92 Each member of the COG is an official advisor to the U.S. delegation in negotiations for any trade agreement under the Act.93 The COG was created "to provide an additional consultative mechanism for Members of Congress and to provide advice to the (United States Trade Representative) on trade negotiations."94 To enter into an international agreement using the TPA procedures, the President must first consult with the Senate Committee on Finance, the House Committee on Ways and Means, and the

COG.95 He must then provide written notice to Congress of his intention to enter into negotiations.96 The notice must include the date that negotiations are scheduled to begin, the specific objectives of the negotiations, and whether the President seeks to create a new agreement or modify an existing agreement.97 Six months prior to signing an agreement, the President must "send a report to Congress . . . that lays out what he plans to do with respect to (U.S.) trade laws."98 At that time, Congress reviews the proposed agreement. The Trade Act of 2002 "provides for a resolution process where Congress can specifically find that the proposed changes are inconsistent with the negotiating objectives."99 In defending the complexity of the Trade Act of 2002, Congress points out that "the negotiating objectives and procedures . . . represent a very careful substantive and political balance on some very complex and difficult issues such as investment, labor and the environment, and the relationship between Congress and the Executive branch during international trade negotiations."100 Without doubt, the Act ultimately places much more stringent limitations on the Presidents ability to negotiate effectively with foreign nations than previous fast-track legislation did.101Document1zzF106300298861 Given this slice of U.S. history showing the allocation of power over international trade agreement negotiations between the executive and Congress in U.S. jurisdiction, it will be turning somersaults with history to contend that the President is the sole organ for external relations. The "sole organ" remark in Curtiss-Wright simply does not apply to the negotiation of international trade agreements in the U.S. where Congress is allowed, at the very least, to indirectly participate in trade negotiations through the setting of statutory limits to negotiating objectives and procedures, and to almost directly negotiate through the Congressional Oversight Group. Let me now discuss the allocation of power over international trade agreements between the Executive and Congress in Philippine jurisdiction. B. Negotiation of trade agreements: the question of power allocation between the Executive and Congress in Philippine jurisdiction In their Reply, petitioners refute respondents contention that the President is the sole organ of the nation in its external relations and has exclusive authority in treaty negotiation by asserting that Congress has the power to legislate on matters dealing with foreign trade; hence, they should have access to the subject JPEPA documents. Specifically, as aforementioned, petitioners as members of the House of Representatives point to Article VI, Section 28 (2) of the 1987 Constitution, as basis of their power over foreign trade. It provides, viz: Sec. 28 (2). The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (emphasis supplied) They contend that, pursuant to this provision, the Executives authority to enter into international trade agreements is a legislative power delegated to the President through Sections 401 and 402 of Presidential Decree No. 1464 or the Tariff and Customs Code of the Philippines, viz: Sec. 401. Flexible Clause.

a. In the interest of national economy, general welfare and/or national security, and subject to the limitations herein prescribed, the President, upon recommendation of the National Economic and Development Authority (hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing protective rates of import duty (including any necessary change in classification). The existing rates may be increased or decreased to any level, in one or several stages but in no case shall the increased rate of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2) to establish import quota or to ban imports of any commodity, as may be necessary; and (3) to impose an additional duty on all imports not exceeding ten (10%) percent ad valorem whenever necessary; xxx xxx xxx

c. The power of the President to increase or decrease rates of import duty within the limits fixed in subsection "a" shall include the authority to modify the form of duty. In modifying the form of duty, the corresponding ad valorem or specific equivalents of the duty with respect to imports from the principal competing foreign country for the most recent representative period shall be used as bases. xxx Sec. 402. Promotion of Foreign Trade. a. For the purpose of expanding foreign markets for Philippine products as a means of assistance in the economic development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relations between the Philippines and other countries, the President, is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof; and (2) To modify import duties (including any necessary change in classification) and other import restrictions, as are required or appropriate to carry out and promote foreign trade with other countries: b. The duties and other import restrictions as modified in subsection "a" above, shall apply to articles which are the growth, produce or manufacture of the specific country, whether imported directly or indirectly, with which the Philippines has entered into a trade agreement: xxx c. Nothing in this section shall be construed to give any authority to cancel or reduce in any manner any of the indebtedness of any foreign country to the Philippines or any claim of the Philippines against any foreign country. d. Before any trade agreement is concluded with any foreign government or instrumentality thereof, reasonable public notice of the intention to negotiate an agreement with such government or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the Commission which shall seek information and advice from the Department of Agriculture, Department of Natural Resources, Department of Trade and Industry, Department of Tourism, the Central Bank of the Philippines, the Department of Foreign Affairs, the Board of Investments and from such other sources as it may deem appropriate.102 (emphasis supplied) xxx xxx

Indeed, it is indubitable that Article VI, Section 28 (2) of the 1987 Constitution, vests Congress with power over foreign trade, at least with respect to the fixing of tariff rates, import and export quotas, tonnage and wharfage dues and other duties and imposts, similar to the power of Congress under the U.S. Constitution. This grant of power to the Philippine Congress is not new in the 1987 Constitution. The 1935 Constitution, in almost similar terms, provides for the same power under Article VI, Section 22(2), viz: Sec. 22(2). The Congress may by law authorize the President, subject to such limitations and restrictions as it may impose to fix, within specified limits, tariff rates, import and export quotas, and tonnage and wharfage dues.103(emphasis supplied) Pursuant to this provision, Congress enacted Republic Act. No. 1937, entitled, "An Act to Revise and Codify the Tariff and Customs Laws of the Philippines," in 1957. Section 402 of the Act is the precursor of Section 402 of the Tariff and Customs Code of the Philippines of 1978,104 which petitioners cite. In almost identical words, these sections provide for the authority of the President to "enter into trade agreements with foreign governments or instrumentalities thereof."105 Section 401 of both the Tariff and Customs Code of 1978 and Republic Act No. 1937 also provide for the power of the President to, among others, increase or reduce rates of import duty.106 The provision in Article VI, Section 22(2) of the 1935 Constitution --to authorize the President, by law, to fix, within specified limits, tariff rates, import and export quotas, and tonnage and wharfage dues -- was inspired by a desire to enable the nation, through the President, to carry out a unified national economic program and to administer the laws of the country to the end that its economic interests would be adequately protected.107 This intention to implement a unified national economic program was made explicit in the 1987 Constitution with the addition of the phrase "within the framework of the national development program of the government," upon motion of Commissioner Christian Monsod. He explained the rationale for adding the phrase, viz: The reason I am proposing this insertion is that an economic program has to be internally consistent. While it is directory to the President and it says "within specified limits" on line 2 there are situations where the limits prescribed to the President might, in fact be distortive of the economic program. xxx xxx xxx

We are not taking away any power from Congress. We are just saying that as a frame of reference, the authority and the limits prescribed should be consistent with the economic program of government which the legislature itself approves.108 (emphasis supplied) In sum, while provision was made for granting authority to the President with respect to the fixing of tariffs, import and export quotas, and tonnage and wharfage dues, the power of Congress over foreign trade, and its authority to delegate the same to the President by law, has consistently been constitutionally recognized.109 Even Curtiss-Wright, which respondents and the ponencia rely on, make a qualification that the foreign relations power of the President, "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."110 Congress power over foreign trade is one such provision that must be considered in interpreting the treaty-making power of the President. Moreover, while Curtiss-Wright admonished that "if, in the maintenance of our international relations, embarrassment -perhaps serious embarrassment- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and

freedom from statutory restriction which would not be admissible were domestic affairs alone involved,"111 the 1987 Constitution itself, reiterating the 1935 and the 1973 Constitutions, provides that Congress may, by law, authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues within specified limits, and subject to such limitations and restrictions as Congress may impose. One cannot simply turn a blind eye on Congress foreign trade power granted by the Constitution in interpreting the power of the Executive to negotiate international trade agreements. Turning to the case at bar, Congress undoubtedly has power over the subject matter of the JPEPA,112 as this agreement touches on the fixing of "tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts." Congress can, in fact, revoke or amend the power of the President to fix these as authorized by law or the Tariff and Customs Code of 1978. Congress can legislate and conduct an inquiry in aid of legislation on this subject matter, as it did pursuant to House Resolution No. 551. The purpose of the legislative inquiry in which the subject JPEPA documents are needed is to aid legislation, which is different from the purpose of the negotiations conducted by the Executive, which is to conclude a treaty. Exercised within their proper limits, the power of the House of Representatives to conduct a legislative inquiry in aid of legislation and the power of the executive to negotiate a treaty should not collide with each other. It is worth noting that petitioner members of the House of Representatives are not seeking to directly participate in the negotiation of the JPEPA, nor are they indirectly interfering with the Executives negotiation of the JPEPA. They seek access to the subject JPEPA documents for purposes of their inquiry, in aid of legislation, on the forging of bilateral trade and investment agreements with minimal public scrutiny and debate, as evinced in the title of House Resolution No. 551, "Directing the Special Committee on Globalization to Conduct an Urgent Inquiry in Aid of Legislation on Bilateral Trade and Investment Agreements that Government Has Been Forging, with Far Reaching Impact on Peoples Lives and the Constitution But with Very Little Public Scrutiny and Debate."113 In relation to this, the ponencia states, viz: Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these "alleged consultations" as "woefully selective and inadequate."114 Precisely, the inquiry in aid of legislation under House Resolution No. 551 seeks to investigate the sufficiency of public scrutiny and debate on the JPEPA, considering its expansiveness, which is well within the foreign trade power of Congress. At this point, it is in fact impossible for petitioners to interfere with the JPEPA negotiations, whether directly or indirectly, as the negotiations have already been concluded. Be that as it may, the earlier discussion on the allocation of international trade powers between the Executive and Congress in U.S. jurisdiction has shown that it is not anathema to the preservation of the treaty-making powers of the President for Congress to indirectly participate in trade agreement negotiations. Let us now proceed to respondents argument that the subject JPEPA documents are covered by the diplomatic secrets privilege and should therefore be withheld from Congress. In so proceeding, it is important to bear in mind the interdependence of the power of Congress over foreign trade and the power of the executive over treaty negotiations. C. The power of Congress to conduct inquiry in aid of legislation on foreign trade vis--vis executive privilege

115

the Court defined "executive privilege" as the right of the President and high-level executive branch officials to withhold information from Congress, the courts, and the public. In the U.S., it is recognized that there are at least four kinds of executive privilege: (1) military and state secrets, (2) presidential communications, (3) deliberative process, and (4) law enforcement privileges.116 In the case at bar, respondents invoke the state secrets privilege covering diplomatic or foreign relations and the deliberative process privilege. Let me first take up the diplomatic secrets privilege. 1. Diplomatic secrets privilege In Almonte v. Vasquez,117 the Court recognized a common law governmental privilege against disclosure, with respect to state secrets bearing on diplomatic matters.118 In Chavez v. PCGG,119 the Court also recognized the confidentiality of information on inter-government exchanges prior to the conclusion of treaties and executive agreements subject to reasonable safeguards on the national interest.120 It also reiterated the privilege against disclosure of state secrets bearing on diplomatic matters, as held in Almonte. Citing Chavez, Senate v. Ermita also acknowledged the states secrets privilege bearing on diplomatic matters. In PMPF v. Manglapus, the Court upheld the confidentiality of treaty negotiations. In that case, petitioners sought to compel the representatives of the President in the then ongoing negotiations of the RP-U.S. Military Bases Agreement to give them access to the negotiations, to treaty items already agreed upon, and to the R.P. and U.S. positions on items that were still being contested. In determining the applicability of the diplomatic secrets privilege to the case at bar, I reiterate the primordial principle in Senate v. Ermita that a claim of executive privilege may be valid or not depending on the ground invoked to justify it and the context in which it is made. Thus, even while Almonte and Senate v. Ermita both recognized the state secrets privilege over diplomatic matters, and Chavez and PMPF v. Manglapus both acknowledged the confidentiality of inter-government exchanges during treaty negotiations, the validity of the claim of the diplomatic secrets privilege over the subject JPEPA documents shall be examined under the particular circumstances of the case at bar. I especially take note of the fact that unlike PMPF v. Manglapus, which involved a request for access to information during negotiations of a military treaty, the case at bar involves a request for information after the conclusion of negotiations of an international trade agreement. Bearing this context in mind, let me now delve into the merits of the invocation of executive privilege. Almonte, Chavez, Senate v. Ermita, and PMPF v. Manglapus did not discuss the manner of invoking the diplomatic secrets privilege. For the proper invocation of this privilege, U.S. v. Reynolds121 is instructive. This case involved the military secrets privilege, which can be analogized to the diplomatic secrets privilege, insofar as they are both based on the nature and the content of the information withheld. I submit that we should follow the procedure laid down in Reynolds to determine whether the diplomatic secrets privilege is properly invoked, viz: The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. xxx xxx xxx

It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.122 (emphasis supplied) (footnotes omitted) In the case at bar, the reasons for nondisclosure of the subject JPEPA documents are stated in the 23 June 2005 letter of respondent Secretary Ermita to Congressman Teves, Chairperson of the House Special Committee on Globalization, viz: "Dear Congressman Teves, xxx xxx xxx

In its letter dated 15 June 2005 (copy enclosed), DFA explains that the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (emphasis supplied) In the meantime, DFA submits copies of the following documents: Joint Statement on the JPEPA issued in December 2002 JPEPA Joint Coordinating Team Report dated December 2003 Joint Announcement of the Philippine President and the Japanese Prime Minister issued in December 2003 Joint Press Statement on the JPEPA issued in November 2004 xxx For your information. Very truly yours, (Signed) Eduardo R. Ermita Executive Secretary"123 Respondents Comment further warned of the danger of premature disclosure of the subject JPEPA documents, viz: At the time when the Committee was requesting the copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege xxx xxx

Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations124 The reasons cited by respondents for refusing to furnish petitioners the subject JPEPA documents demonstrate that these documents contain matters that should not be disclosed, lest the ongoing negotiations be hampered. As respondents further explain in their Comment, if premature disclosure is made while negotiations are ongoing, the Philippine panel and the President would be "hampered and embarrassed by criticisms or comments from persons with inadequate knowledge of the nuances of treaty negotiations or worse by publicity seekers or idle kibitzers."125 Without ruling on the confidentiality of the subject JPEPA documents during negotiations (as this is no longer in issue), I submit that the reasons provided by respondents for invoking the diplomatic secrets privilege while the JPEPA negotiations were ongoing no longer hold now that the negotiations have been concluded. That respondents were claiming confidentiality of the subject JPEPA documents during -- not after -- negotiations and providing reasons therefor is indubitable. The 23 June 2005 letter of respondent Secretary Ermita to Congressman Teves states that the "proposed Agreement has been a work in progress for about three years." Likewise, respondents Comment states that "(a)t the time when the Committee was requesting the copies of such documents, the negotiations were ongoing as they are still now." Both statements show that the subject JPEPA documents were being withheld from petitioners during and not after negotiations, and that the reasons provided for withholding them refer to the dangers of disclosure while negotiations are ongoing and not after they have been concluded. In fact, respondent Secretary Ermitas 23 June 2005 letter states that a "copy of the draft JPEPA" as soon as "the text thereof is settled and complete" would be forwarded to the Committee, which is precisely one of the subject JPEPA documents, i.e., the final text of the JPEPA prior to its signing by the President. Similarly, in his letter dated 2 November 2005, respondent Undersecretary Aquino replied that the Committee would be provided the latest draft of the agreement "once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted."126 Both letters of Secretary Ermita and Undersecretary Aquino refer to the draft texts of the JPEPA that they would provide to the Committee once the negotiations and text are completed, and not to the final text of the JPEPA after it has been signed by the President. The discussion infra will show that in the case of the North American Free Trade Agreement (NAFTA), the complete text of the agreement was released prior to its signing by the Presidents of the U.S., Canada and Mexico. Likewise, draft texts of the Free Trade Area of the Americas (FTAA) have been made accessible to the public. It is not a timeless absolute in foreign relations that the text of an international trade agreement prior to its signing by the President should not be made public. For a claim of diplomatic secrets privilege to succeed, it is incumbent upon respondents to satisfy the Court that the disclosure of the subject JPEPA documents after the negotiations have been concluded would prejudice our national interest, and that they should therefore be cloaked by the diplomatic secrets privilege. It is the task of the Executive to show the Court the reason for the privilege in the context in which it is invoked, as required by Senate v. Ermita, just as the U.S. government did in Reynolds.127 Otherwise, the Court, which has the duty to determine with finality whether the circumstances are appropriate for a claim of privilege,128 will not have any basis for upholding or rejecting respondents invocation of the privilege. The requirement to show the reason for the privilege is especially important in the case at bar, considering that the subject JPEPA documents are part of trade agreement negotiations, which involve the interdependent powers of the Executive over treaty negotiations and the legislature over foreign trade, as recognized in both Philippine and U.S. jurisdictions. Upon the Executives showing of the reason and circumstances for invoking the diplomatic secrets privilege, the Court can then consider whether the application of the

privilege to the information or document in dispute is warranted. As the Executive is given the opportunity to show the applicability of the privilege, there is a safeguard for protecting what should rightfully be considered privileged information to uphold national interest. With respondents failure to provide reasons for claiming the diplomatic secrets privilege after the conclusion of negotiations, the inevitable conclusion is that respondents cannot withhold the subject JPEPA documents. The contentions in the Concurring Opinion of Justice Carpio that a State may wish to keep its offers "confidential even after the signing of the treaty because it plans to negotiate similar treaties with other countries and it does not want its negotiating positions known beforehand by such countries," and that "(i)f the Philippines does not respect the confidentiality of the offers and counter-offers of its negotiating partner State, then other countries will be reluctant to negotiate in a candid and frank manner with the Philippines"129 are speculative and matters for respondents to show the Court. The same holds true as regards the assertion in the Separate Opinion of Justice Tinga that "with respect to the subject treaty, the Government of the Philippines should expectedly heed Japans normal interest in preserving the confidentiality of the treaty negotiations and conduct itself accordingly in the same manner that our Government expects the Japanese Government to observe the protocol of confidentiality."130 Respondents having failed in shielding the subject JPEPA documents with the diplomatic secrets privilege, let us now proceed to determine whether they can keep these documents secret under the deliberative process privilege, which is a distinct kind of executive privilege. The Separate Opinion of Justice Tinga asserts, however, that while there is a distinction between the diplomatic secrets privilege and the deliberative process privilege, "they should be jointly considered if the question at hand, as in this case, involves such diplomatic correspondences related to treaty negotiationsThus, it would not be enough to consider the question of privilege from only one of these two perspectives as both species of privilege should be ultimately weighed and applied in conjunction with each other." Indeed, the diplomatic character of the JPEPA deliberations or negotiations and the subject JPEPA documents was considered in determining the applicability of the diplomatic secrets privilege in the above discussion. But as respondents have failed in protecting the subject JPEPA documents with this kind of privilege that considers the diplomatic character of negotiations, the next question to consider is whether another kind of privilege -- that does not hinge on the diplomatic nature of negotiations, but on the deliberative status of information alone can shield the subject JPEPA documents. 2. Deliberative process privilege The "deliberative process privilege" was not literally invoked in the 23 June 2005 letter of respondent Secretary Ermita or in respondents Comment. Nevertheless, Secretary Ermitas statement that "the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years, (a) copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete," and respondents afore-quoted assertion of danger of premature disclosure131 in their Comment show reliance on the deliberative process privilege. In the U.S., it is settled jurisprudence that the deliberative process privilege justifies the governments withholding of documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."132 In 1958, the privilege was first recognized in a U.S. federal case,

Kaiser Aluminum Chemical Corp. v. United States,133 in which the term "executive privilege" was also originally used. Kaiser was a suit filed against the U.S. in the Federal Court of Claims. Plaintiff Kaiser sought documents from the General Services Administration in the context of an action for breach of the most favored purchaser clause of a contract for the sale of war aluminum plants to plaintiff. The Court of Claims held that the production of advisory opinion on intra-office policy in relation to the sale of aluminum plants to plaintiff and to another entity was contrary to public interest; thus, the U.S. must be allowed to claim the executive privilege of nondisclosure. The Court sustained the following justification of the government for withholding a document: The document . . . contains opinions that were rendered to the Liquidator of War Assets by a member of his staff concerning a proposed sale of aluminum plants. Those opinions do not necessarily reflect the views of, or represent the position ultimately taken by, the Liquidator of War Assets. A disclosure of the contents of documents of this nature would tend to discourage the staffs of Government agencies preparing such papers from giving complete and candid advice and would thereby impede effective administration of the functions of such agencies.134 (emphasis supplied) Thereupon, the Court etched out the classic justification of the deliberative process privilege,135 viz: Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act.136 (emphasis supplied) The Court also threw in public policy and public interest as bases for the deliberative process privilege, viz: Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizenThere is a public policy involved in this claim of privilege for this advisory opinion -the policy of open, frank discussion between subordinate and chief concerning administrative action.137 xxx xxx xxx

Viewing this claim of privilege for the intra-agency advisory opinion in its entirety, we determine that the Governments claim of privilege for the document is well-founded. It would be definitely contrary to the public interest in our view for such an advisory opinion on governmental course of action to be produced by the United States under the coercion of a bar against production of any evidence in defense of this suit for contract damages.138 (emphasis supplied) The Court also held that the judicial branch, and not the executive branch, is the final arbiter of whether the privilege should apply, contrary to the governments assertion that the head of the relevant agency should be allowed to assert the privilege unilaterally.139 Courts and scholars have identified three purposes140 of the privilege: (1) to protect candid discussions within an agency;141 (2) to prevent public confusion from premature disclosure of agency opinions before the agency has established a final policy;142 and (3) to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action, when these were not in fact the ultimate reasons for the agencys action.143

Two requisites are essential for a valid assertion of the privilege: the material must be pre-decisional and deliberative. To be "pre-decisional," a document must be generated before the adoption of an agency policy. To be "deliberative," it must reflect the give-and-take of the consultative process.144 Both requirements stem from the privileges "ultimate purpose (which) ... is to prevent injury to the quality of agency decisions" by allowing government officials freedom to debate alternative approaches in private.145 The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made; nor does the privilege cover material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the governments deliberations.146 There must also be a formal assertion of the privilege by the head of the department in control of the information based on his actual personal consideration of the matter and an explanation as to why the information sought falls within the scope of the privilege.147 Once the agency has shown that the material is both pre-decisional and deliberative, the material enjoys a qualified privilege that may be overcome by a sufficient showing of need, as held in In re Sealed Case (Espy).148 In general, courts balance the need for information against the harm that may result from disclosure. Thus, "each time (the deliberative process privilege) is asserted, the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." 149 These rulings were made in the context of the refusal of the White House to submit some documents sought by a grand jury subpoena.150 In our jurisdiction, the Court has had no occasion to recognize and rule on the applicability of the deliberative process privilege. In the recent case Neri v. Senate Committees,151 the Court recognized the claim of the presidential communications privilege, which is closely associated with the deliberative process privilege.152 In In re Sealed Case (Espy), the distinction between the two privileges was explained, viz: Both are executive privileges designed to protect executive branch decision-making, but one (deliberative process privilege) applies to decision-making of executive officials generally, the other specifically to decision-making of the President. The presidential privilege is rooted in constitutional separation of powers principles and the Presidents unique constitutional role; the deliberative process privilege is primarily a common law privilege Consequently, congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege Unlike the deliberative process privilege (which covers only material that is pre-decisional and deliberative),153 the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones."154 (emphasis supplied) The distinction notwithstanding, there is no reason not to recognize in our jurisdiction the deliberative process privilege, which has essentially the same purpose as the presidential communications privilege, except that it applies to executive officials in general. Let us now determine whether the deliberative process privilege will shield from disclosure the following JPEPA documents sought by petitioners: (1) the initial offers (of the Philippines and Japan) of the JPEPA, including all pertinent attachments and annexes thereto; and (2) the final text of the JPEPA prior to the signing by the President. The answer is in the negative. It is my considered view that the subject JPEPA documents do not come within the purview of the kind of information which the deliberative process privilege shields in order to promote frank and candid discussions and protect executive branch decision-making of the Philippine government. The

initial offers are not in the nature of "advisory opinions, recommendations and deliberations"155 similar to those submitted by the subordinate to the chief in a government agency, as in the seminal case of Kaiser. The initial offer of the Philippines is not a document that offers alternative courses of action to an executive official to aid in the decision-making of the latter, but is instead a proposal to another government, the Japanese government, to institute negotiations. The end in view of these negotiations is not a decision or policy of the Philippine government, but a joint decision or agreement between the Philippine and the Japanese governments. Likewise, the final text of the JPEPA prior to signing by the President is not in the nature of an advice or recommendation or deliberation by executive officials of the Philippine government, as it is the handiwork of the Philippine and the Japanese negotiating panels working together. The documents sought to be disclosed are not of the same nature as internal deliberations of the Department of Trade and Industry or the Philippine negotiating panel in crafting and deciding the initial offer of the Philippines or internal memoranda of Philippine government agencies to advise President Macapagal-Arroyo in her decision to sign the JPEPA. Extending the mantle of protection of the deliberative process privilege to the initial offers of the Philippines and of Japan and the final JPEPA text prior to signing by President Macapagal-Arroyo will be tantamount to extending the protection of executive branch decision-making to the executive branch not only of the Philippine government, but also of the Japanese government, which, in trade agreement negotiations, represents an interest adverse to that of the Philippine government. As seen from the rationale and history of the deliberative process privilege, this is not the intent of the deliberative process privilege.156 Given the nature of the subject JPEPA documents, it is the diplomatic secrets privilege that can properly shield them upon sufficient showing of reasons for their confidentiality. Hence, the invocation of deliberative process privilege to protect the subject JPEPA documents must fail. But this is not all. In Senate v. Ermita, the Court also required that executive privilege must be invoked by the President, or the Executive Secretary "by order of the President," unlike in U.S. jurisdiction where, as afore-discussed, the formal assertion of the head of the department claiming the privilege suffices.157 In the case at bar, the Executive Secretary invoked both the deliberative process privilege and the diplomatic secrets privilege not "by order of the President," as his 23 June 2005 letter quoted above shows. Accordingly, the invocation of executive privilege was not properly made and was therefore without legal effect. Senate v. Ermita was decided on 20 April 2006 and became final and executory on 21 July 2006. Hence, it may be argued that it cannot be used as a yardstick to measure whether respondent Secretary Ermita properly invoked executive privilege in his 23 June 2005 letter. It must be noted, however, that the case at bar has been pending decision even after the finality of Senate v. Ermita. During the time of its pendency, respondents failed to inform the Court whether Executive Secretary Ermitas position bore the imprimatur of the Chief Executive. The period of nearly two years from the time Senate v. Ermita became final up to the present is more than enough leeway for the respondents to comply with the requirement that executive privilege be invoked by the President, or the Executive Secretary "by order of the President." Contrary to the assertion of the ponencia,158 the Court would not be overly strict in exacting compliance with the Senate v. Ermita requirement, considering the two-year margin the Court has afforded respondents. Let us now determine whether the publics constitutional right to information and participation can be trumped by a claim of executive privilege over the documents sought to be disclosed. II. The context: the question of the right of access of the petitioner private citizens to the subject JPEPA documents is raised in relation to international trade agreement negotiations on the strength of a constitutional right to information and participation

A. The developing openness of trade agreement negotiations in U.S. jurisdiction The waning of the exclusivity of executive power over negotiations of international trade agreements vis--vis Congressional power over foreign trade was accompanied by a developing openness to the public of international trade agreement negotiations in U.S. jurisdiction. Historically, the American public only had an indirect participation in the trade negotiation process. Public involvement primarily centered on electing representatives who were responsible for shaping U.S. trade policy.159From the 18th century until the early 1930s, U.S. international trade relations160 were largely left to the interplay between these public delegates in the legislative and the executive branches and similar officials in foreign nations.161 But this trend began to see changes during the Great Depression in the early 1930s and the enactment of the Trade Agreements Act of 1934,162 under which regime the 1936 case Curtiss-Wright was decided. As afore-discussed, the U.S. Congress passed the Reciprocal Trade Agreement Act of 1934 (the 1934 Act). As an economic stimulus, the 1934 Act authorized the President to address economic stagnation by reducing tariffs on foreign goods by as much as fifty percent.163 When the President took such an action, Americas trading partners reciprocated by reducing tariffs placed on U.S. goods, thereby stimulating the U.S. economy.164 Confronted with the Great Depression and the subsequent deterioration of the global economy, the 1934 Act called for a single, strong voice to deal effectively with foreign nations. Thus, the President, with this Congressional mandate, became the chief American trade negotiator with complete and unrestricted authority to enter into binding international trade agreements.165 While the 1934 Act gave trading muscle to the President, it also created the first formal method of public participation in the international trade negotiation process. Section 4 of the 1934 Act required "reasonable public notice" of the Presidents intention to enter into agreements with foreign states,166 thereby giving American citizens the opportunity to know with which foreign nations the U.S. government proposed to negotiate. Pursuant to the 1934 Act, the President established the Trade Agreements Committee, which was composed of high-ranking members of the executive branch.167 The Trade Agreements Committee, commonly known as the Committee for Reciprocity Information, conducted public hearings at which specific items up for negotiation with a particular country would be discussed.168 But with the Congress left almost completely outside the trade negotiation process and agreements being concluded and implemented in relative obscurity, the attention of Congress and the public turned more toward the pressing domestic issues, at least until the dawn of the 70s.169 The Cold War and the lingering Vietnam War made international relations increasingly significant to the general welfare of the U.S. By the mid-1970s, the post-World War II economic dominance of the U.S. began to deteriorate.170 Under Japans lead, Asia began gaining economic strength, quickly joining Europe as a major global industrial competitor to the U.S. At the same time, increased media coverage brought international trade issues to the publics attention171 and moved the public to challenge the traditions, institutions, and authority of government with respect to trade issues. With the swell of public activism, the U.S. Congress re-analyzed its transfer of powers over international trade issues. Thus, as afore-discussed, in 1974, after forty years of continuous presidential authority over international trade matters, Congress passed the Trade Act of 1974.172 The Trade Act of 1974 increased the levels of public involvement in international trade negotiations, far beyond the requirement of notice of a proposed trading partner under the 1934 Act. The 1974 Act required international agreements to include provisions creating domestic procedures through which interested public parties could participate in the international trade process.173 It also

required the President to seek information and advice from both private and public sectors.174 For this purpose, it incorporated the use of advisory committees and included spontaneous opportunities for acceptance of information from the public.175 Thus, the 1974 Act, supplemented by several amendments passed in 1979 and 1988, opened the door to unprecedented formal and direct public participation176 in the negotiation of international trade agreements and contributed to a rekindled awareness of government activities and their impact on the public.177 Towards the latter half of the 1980s, government leaders and trade experts again began to advocate reduced trade barriers as an answer to economic difficulty. They became convinced that increased emphasis on free global trade was the key to future economic prosperity. The idea of increasing the size and strength of the national economy by reducing restrictions on foreign trade was the impetus behind trade agreements such as the 1993 North American Free Trade Agreement (NAFTA)178 concluded among the U.S., Mexico and Canada. The launch of the NAFTA and the completion of the World Trade Organizations (WTO) Uruguay round in the mid-90s swept in a new era of unprecedented international collaboration on trade policy.179 In the 1990s, the changing nature of world politics and economics focused international issues on economic well-being rather than on political and military dominance. Fearing environmental destruction and increased unemployment, members of Congress, commentators, and special interest groups have used trade agreements such as NAFTA and the mass media to heighten public awareness and participation in international trade relationships.180 The 1990s led the American public to realize that international trade issues had a direct impact on their standard of living and way of life,181 thus fomenting public participation in international trade negotiations. With the growing concern over the far-reaching implications of bilateral and multilateral international trade agreements and the increased focus upon the processes by which they are negotiated, calls for greater openness and public participation in their negotiation have come in many forms and from many corners, particularly in the U.S. A central component of the demand for participation has been to gain access to negotiating documents shared by the U.S. with other governments prior to the conclusion of a free trade agreement.182 The 1990s saw a continuous expansion of public access to the international trade agreement process. Rather than simply being left to point out failures in already existing agreements, individuals were now allowed to help shape future agreements. In reemphasizing the open government mentality of the 1970s, the 1990s marked the beginning of a new era in trade negotiations. Private individuals now played an important role in many areas throughout the international trade agreement process.183 The Trade Act of 2002 was then passed, enhancing transparency through increased and more timely access to information regarding trade issues and activities of international trade institutions; increased public access to meetings, proceedings, and submissions at the World Trade Organization (WTO); and increased and more timely public access to all notifications and supporting documentation by parties to the WTO.184 Public participation in international trade negotiations affects trade negotiations in two distinct ways. First, it serves as a check on the power of elected and bureaucratic leaders by generating and limiting the issues that require government action. Second, it provides those in positions of power and influence with specific, detailed information upon which to base their decisions; for in the absence of public input, government officials risk making decisions based on incomplete information, thereby compromising public policy.185 The public participates in trade negotiations in various ways. Individuals influence governmental action by electing the President and members of Congress, joining special interest groups that lobby influential members of the executive and the legislative branches, initiating litigation, serving on presidentially appointed advisory committees, testifying at international trade commission hearings,

and protesting individually or as a group. But ultimately, the degree of public involvement in any area of government policy depends on the amount of available access.186 Although the NAFTA negotiations have been criticized for being shrouded in much secrecy, the U.S. government released on 6 September 1992, the most recent text of the NAFTA, prior to its signing by Canadian Prime Minister Brian Mulroney, U.S. President George H.W. Bush and Mexican President Carlos Salinas on October 7, 1992.187 The negotiation of the Free Trade Area of the Americas (FTAA) that began in 1995 has also shown a changing landscape that allows for greater public participation in international trade negotiations. In their Santiago Summit in 1998, the heads of thirty-four Western Hemisphere states extended principles of participation explicitly to the FTAA: The FTAA negotiating process will be transparent . . . in order to create the opportunities for the full participation by all countries. We encourage all segments of civil society to participate in and contribute to the process in a constructive manner, through our respective mechanisms of dialogue and consultation and by presenting their views through the mechanism created in the FTAA negotiating process.188 The Santiago Declaration also includes a pledge to "promote the necessary actions for government institutions to become more participatory structures." 189 (emphasis supplied) In the Quebec Summit in 2001, the heads of State went even further and declared their commitment to "the full participation of all persons in the political, economic, social and cultural life of our countries."190 They also addressed participation in the context of an FTAA and committed to -Ensure the transparency of the negotiating process, including through publication of the preliminary draft FTAA Agreement in the four official languages as soon as possible and the dissemination of additional information on the progress of negotiations; [and to] Foster through their respective national dialogue mechanisms and through appropriate FTAA mechanisms, a process of increasing and sustained communication with civil society to ensure that it has a clear perception of the development of the FTAA negotiating process; [and to] invite civil society to continue to contribute to the FTAA process . . .191 (emphasis supplied) Thus, the Presidential summits, which have established both the impetus and the context for an FTAA, unmistakably contemplate public access to the negotiating process, and the FTAA itself is a central part of that process.192 In July 2001 came the first public release of the preliminary official text of the FTAA. A revised draft of the text was released in November 2002 and again in 2003.193 This notwithstanding, civil society organizations have expressed great concern for and emphasis on the timeliness of information given to the public and input given to negotiators. They have observed that the draft text is published long after issues are actually negotiated; they have thus proposed specific mechanisms for the timely release of negotiating documents, many of which were procedures already in place in the World Trade Organization (WTO).194 The need to create meaningful public participation during negotiation and implementation applies to both multilateral agreements, such as the FTAA, and to bilateral agreements.195 Public participation gives legitimacy to the process and result, and it strengthens the political will of populations who must support ratification and implementation once the text is finalized. The wide range of expertise available outside of governmental corridors would also be more fully accessible to officials if an organic and meaningful exchange of ideas is part of the process. While it is true that participation implies resource allocation and sometimes delay, these are investments in a democratic outcome and should not be seen as costs.196

Secrecy has long played an integral but also controversial role in the negotiation of international agreements. It facilitates frank discussion, minimizes posturing and allows flexibility in negotiating positions. But it is also prone to abuse and is often assailed as undemocratic and facilitating abuse of power. In the public eye, excessive secrecy can weaken accountability and undermine the legitimacy of government action.197 Generally, it can also undermine the faith of the public in the need for secrecy198 for "secrecy can best be preserved only when credibility is truly maintained."199 The tension between secrecy and the demand for openness continues, but circumstances have changed, as the international trade agreements of today tend to be far more authoritative and comprehensive than those negotiated by Presidents Woodrow Wilson, George Washington and John Jay. These trade agreements have broader and more direct consequences on private conduct. As the trend on international trade agreements will only continue, it is important to revisit the tension between secrecy and openness. The fact alone that secrecy shrouded negotiations of international agreements three hundred or even twenty-five years ago can no longer justify the continuation of that approach in todays era of the NAFTA, CAFTA (Central American Free Trade Agreement), and a prospective FTAA.200 These developments in the openness to the public of international trade agreement negotiations show that secrecy in the negotiation of treaties is not a rule written in stone. Revisiting the balance between secrecy and openness is an imperative, especially in the Philippines where the right to information has been elevated to a constitutional right essential to our democratic society. B. Democracy and the rights to information and participation 1. Philippine Constitutional provisions on information and transparency Of all the organic laws of our country, the 1987 Constitution holds most sacrosanct the peoples role in governance. As a first principle of government, the 1987 Constitution declares in Article II, Section 1, Declaration of Principles and State Policies, that the Philippines is not only a republican but also a democratic state. The word "democratic" was added to "republican" as a "pardonable redundancy" to highlight the importance of the peoples role in government, as evinced by the exchanges in the 1986 Constitutional Commission, viz: MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through peoples organizations . . .201 xxx xxx xxx

MR. OPLE. The Committee added the word "democratic" to "republican," and, therefore, the first sentence states: "The Philippines is a republican and democratic state." May I know from the committee the reason for adding the word "democratic" to "republican"? The constitutional framers of the 1935 and 1973 Constitutions were content with "republican." Was this done merely for the sake of emphasis? MR. NOLLEDO. Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the Commissioner to know that "democratic" was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, peoples organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances."

MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need. . . xxx xxx xxx

MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory democracy.202 (emphasis supplied) Of a similar tenor is the following exchange between Commissioners Abraham Sarmiento and Adolfo Azcuna: MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words "republican state" because "republican state" would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government.203 (emphasis supplied) In line with this desideratum, our fundamental law enshrined in rubric the indispensability of the peoples participation in government through recall,204 initiative,205 and referendum.206 Similarly, it expressly provided for the peoples right to effective and reasonable participation in Article XIII, Section 16, on Social Justice and Human Rights, viz: The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. (emphasis supplied) To prevent the participation of the people in government from being a mere chimera, the 1987 Constitution also gave more muscle to their right to information, protected in the Bill of Rights, by strengthening it with the provision on transparency in government, and by underscoring the importance of communication. Thus, the 1987 Constitution provides in Article III, Section 7 of the Bill of Rights, viz: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (emphasis supplied) Symmetrical to this right to information are the following provisions of the 1987 Constitution: Article II, Section 28, Declaration of State Principles and Policies: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (emphasis supplied) Article XI, Section 21, National Economy and Patrimony:

Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. (emphasis supplied) The objective of the 1987 Constitution is to attain an open and honest government predicated on the peoples right to know, as shown by the following portion of the deliberations of the 1986 Constitutional Commission, viz: MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Treas, Romulo, Regalado and Rosario Braid. It reads as follows: "SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW." xxx xxx xxx

In the United States, President Aquino has made much of the point that the government should be open and accessible to the public. This amendment is by way of providing an umbrella statement in the Declaration of Principles for all these safeguards for an open and honest government distributed all over the draft Constitution. It establishes a concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the peoples right to know as the centerpiece.207 (emphasis supplied) The correlative policy of public disclosure and the peoples right to information were also expounded by Constitutional Commissioners Joaquin Bernas and Napoleon Rama, viz: FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the right to information) talks about the right of the people to information, and corresponding to every right is a duty. In this particular case, corresponding to this right of the people is precisely the duty of the State to make available whatever information there may be needed that is of public concern. Section 6 is very broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of Section 6 is that it challenges citizens to be active in seeking information rather than being dependent on whatever the State may release to them. xxx xxx xxx

MR. RAMA. There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights. The basic difference is that the Bill of Rights contemplates collision between the rights of the citizens and the State. Therefore, it is the right of the citizen to demand information. While under the Declaration of Principles, the State must have a policy, even without being demanded, by the citizens, without being sued by the citizen, to disclose information and transactions. So there is a basic difference here because of the very nature of the Bill of Rights and the nature of the Declaration of Principles.208 (emphases supplied) Going full circle, the 1987 Constitution provides for the vital role of information in nation-building in the opening Declaration of State Principles and Policies and in the General Provisions towards the end of the Constitution. Article II, Section 24, provides, viz:

Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied). Article XVI, Section 10, General Provisions provides, viz: Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. (emphasis supplied) Constitutional Commissioner Rosario Braid explained the rationale of these provisions on information and communication in her sponsorship speech, viz: MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision of society. Here we have a preferred vision where opportunities are provided for participation by as many people, where there is unity even in cultural diversity, for there is freedom to have options in a pluralistic society. Communication and information provide the leverage for power. They enable the people to act, to make decisions, to share consciousness in the mobilization of the nation.209 (emphasis supplied) With the constitutional provisions on transparency and information brightlined in neon as backdrop, we now focus on the peoples right to information. 2. Focusing on the right to information The constitutional provision on the peoples right to information made its maiden appearance in the Bill of Rights of the 1973 Constitution, but without the phrase "as well as to government research data used as basis for policy development." The phrase was added in the 1987 Constitution to stop the government practice during Martial Law of withholding social research data from the knowledge of the public whenever such data contradicted policies that the government wanted to espouse.210 Likewise, the framers of the 1987 Constitution expanded the scope of "transactions" that may be accessed, to include negotiations leading to the consummation of contracts and treaties, but subject to "reasonable safeguards on national interest."211 The intent of the constitutional right to information, as pointed out by Constitutional Commissioner Wilfrido V. Villacorta, is "to adequately inform the public so that nothing vital in state affairs is kept from them"212 In Valmonte v. Belmonte,213 we explained the rationale of the right of access to information, viz: An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated xxx xxx xxx

The right of access to information ensures that these freedoms are not rendered nugatory by the governments monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.214 (emphases supplied) Notably, the right to information was written in broad strokes, as it merely required that information sought to be disclosed must be a matter of public concern.215 In Legaspi v. Civil Service Commission,216 the Court elucidated on the meaning of "matters of public concern," viz: In determining whether or not a particular information is of public concern, there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.217 (emphasis supplied) Under both the 1973 and the 1987 Constitutions, the right to information is self-executory. It is a public right that belongs to and can be invoked by the people. Consequently, every citizen has the "standing" to challenge any violation of the right and may seek its enforcement.218 The self-executory status and the significance in a democracy of the right of access to information were emphasized by the Court in Gonzales v. Narvasa,219 viz: Under both the 1973 (footnote omitted) and 1987 Constitutions, this (the right to information) is a self-executory provision which can be invoked by any citizen before the courts Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]) that "[t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times."220 (emphases supplied) Prior to the 1973 Constitution, this right was merely statutory in character, as stressed in Subido v. Ozaeta.221 In said case, Subido was an editor of the Manila Post. He filed a petition for mandamus to compel the respondents Secretary of Justice and Register of Deeds of Manila to furnish him the list of real estate properties sold to aliens and registered with the Register of Deeds of Manila since the promulgation of Department of Justice Circular No. 128, or to allow him to examine all records in the respondents custody relative to the said transactions, after his requests to the Secretary of Justice and the Register of Deeds were denied.

The Court upheld the contention of the respondents that the 1935 Constitution did not guarantee freedom of information or freedom to obtain information for publication. The Court ruled that "the right to examine or inspect public records is purely a question of statutory construction."222 Section 56 of Act No. 496, as amended by Act No. 3300, saved the day for Subido, as it provided that "all records relating to registered lands in the office of the Register of Deeds shall be open to the public subject to such reasonable regulations as may be prescribed by the Chief of the General Land Registration Office with the approval of the Secretary of Justice." Hence, the petition for mandamus was granted. The Subido Courts interpretation of the 1935 Constitution followed U.S. jurisprudence that did not and continues not to recognize a constitutional right of access to information on matters of public concern. Let us briefly examine the right of access to information in U.S. and other jurisdictions. 3. Right to information in U.S. and other jurisdictions a. U.S. jurisdiction The U.S. Supreme Court has recognized a constitutional right to receive information integral to the freedom of speech under the First Amendment to the U.S. Constitution. It has ruled, however, that the right of access to information is not constitutionally mandated, but statutorily granted.223 The U.S. Supreme Court first identified a constitutional right to receive information in the 1936 case Grosjean v. American Press Company.224 In that case, the U.S. High Court, citing Judge Cooley, held that a free and general discussion of public matters is essential to prepare the people for an intelligent exercise of their rights as citizens.225 In the 1976 case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,226 widely considered to be the seminal "right to receive" case,227 a Virginia statute forbidding pharmacists from advertising the prices of prescription drugs was held unconstitutional by the U.S. High Court. It reasoned that the free speech guarantee of the First Amendment covered not only the speaker, but also the recipient of the speech. While commercial speech was involved in that case, the Court left no doubt that the constitutional protection for receipt of information would apply with even more force when more directly related to self-government and public policy.228 On the premise that information is a prerequisite to meaningful participation in government, the U.S. Congress passed the Freedom of Information Act of 1966 (FOIA).229 In the leading FOIA case, Environmental Protection Agency v. Mink,230 the U.S. Supreme Court held that the FOIA "seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands."231 In Department of Air Force v. Rose,232 the same Court held that the basic purpose of the law was "to open agency action to the light of public scrutiny." In National Labor Relations Board v. Robbins Tire & Rubber Co.,233 the U.S. High Court ruled that the basic purpose of the FOIA "is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."234 Under the FOIA, the reason for the request for information has no bearing on the merits of the request.235 But while the FOIA promotes a policy of public disclosure, it recognizes certain exemptions from disclosure, among which are matters "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order."236 Still and all, the U.S. Supreme Court characterized the right of access to information as statutory and not constitutional in Houchins v. KQED, Inc., et al.,237 viz: "(T)here is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. . . The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act."238 Neither the

U.S. courts nor the U.S. Congress recognizes an affirmative constitutional obligation to disclose information concerning governmental affairs; such a duty cannot be inferred from the language of the U.S. Constitution itself.239 Like the U.S., other countries also recognize a statutory right to information as discussed below. b. Other jurisdictions (i.e., UK, Australia and New Zealand) In the United Kingdom, the last four decades of the 20th century saw a gradual increase in the rights of the individual to elicit information from the public authorities.240 This trend culminated in the passage of the "Freedom of Information Act 2000" (FOIA 2000). FOIA 2000 conferred a right of access to official information to every person, irrespective of that persons interest in the information. It covers all information, regardless of subject matter, but also provides for specific exemptions. Exemptions under FOIA 2000 can be either absolute or qualified. When the exemption is absolute, the right to disclosure does not apply; but when it is qualified, the right will not be applied only if the public interest in maintaining the exemption outweighs the public interest in disclosure of the information.241 The weighing of the public interest must be carried out by reference to the particular circumstances existing at the time a request for information is made. "The central question in every case is the content of the particular information in question. Every decision is specific to the particular facts and circumstances under consideration."242 Thus, while a public authority may properly refuse to disclose information subject to a qualified exemption, a change in surrounding circumstances may result in the public authority being obliged to disclose the information upon a subsequent request.243 Among the qualified exemptions are information that "would be likely to prejudicerelations between the United Kingdom and any other State"244 and "confidential information obtained from a State other than the United Kingdom"245 Ahead of the United Kingdom, the Commonwealth of Australia passed its "Freedom of Information Act 1982 (Act 1982)." Act 1982 gives every person a legally enforceable right to obtain access to information of a public agency without requirement to demonstrate a need to know.246 At the same time, it recognizes two basic kinds of exemptions: (1) exemptions which protect a document of a particular class or kind without a need to refer to the effects of disclosure (class exemption), and (2) exemptions which depend on demonstrating a certain likelihood that a particular harm would result from disclosure of a document (harm-based exemption). Covered by the harm-based exemptions are documents that "would, or could reasonably be expected to, cause damage tothe international relations of the Commonwealth" or "would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth."247 Almost simultaneous with Australia, New Zealand enacted the "Official Information Act 1982 (OIA)," which allows its citizens, residents, persons in New Zealand, and companies incorporated in New Zealand to request official information. Under the OIA, exemptions may be divided into two broad classes: (1) "those that are engaged upon their terms being satisfied," and (2) "those that will be disengaged if, in the circumstances, the withholding of particular information is outweighed by other considerations which render it desirable in the public interest to make that information available."248 Among the exemptions included in the first class is information that would be likely to

prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such government.249 Taking into account the higher constitutional status of the right of access to information in Philippine jurisdiction compared with the statutorily granted right of access to information in U.S. and other jurisdictions, let me now turn to the question of whether executive privilege can constitute an exception to the right of access and be used to withhold information from the public. C. Adjudicating the constitutional right to information vis--vis executive privilege in Philippine jurisdiction 1. The general rule and the exception With the elevation of the right to information to constitutional stature, the starting point of the inquiry is the general rule that the public has a right to information on matters of public concern and the State has a corresponding duty to allow public access to such information. It is recognized, however, that the constitutional guarantee admits of exceptions such as "limitations as may be provided by law."250 Thus, as held in Legaspi, "in every case, the availability of access to a particular public record" is circumscribed by two elements: (1) the information is "of public concern or one that involves public interest," and, (2) it is "not exempt by law from the operation of the constitutional guarantee."251 The question of access is first addressed to the government agency having custody of the information sought. Should the government agency deny access, it "has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee" because "(t)o hold otherwise will serve to dilute the constitutional right. As aptly observed, the government is in an advantageous position to marshal and interpret arguments against release (87 Harvard Law Review 1511 [1974])."252 Furthermore, the Court ruled that "(t)o safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts."253 There is no dispute that the subject JPEPA documents are matters of public concern that come within the purview of Article III, Section 7 of the Bill of Rights. The thorny issue is whether these documents, despite being of public concern, are exempt from being disclosed to petitioner private citizens on the ground that they are covered by executive privilege.254 Unlike the U.S., U.K., Australia, and New Zealand, the Philippines does not have a comprehensive freedom of information law that enumerates the exceptions or sources of exceptions255 to the right to information. In our jurisdiction, various laws provide exceptions from the duty to disclose information to the public, such as Republic Act No. 8293 or the "Intellectual Property Code," Republic Act No. 1405 or the "Secrecy of Bank Deposits Act," and Republic Act No. 6713 or the "Ethical Standards Act."256 Respondents contend that Executive Order 464 (E.O. 464), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under the Constitution, and for other Purposes,"257 provides basis for exemption of the subject JPEPA documents from the operation of the constitutional guarantee of access to information. They argue that while Senate v. Ermita struck down Sections 2(b) and 3 of E.O. 464 as unconstitutional, Section 2(a), which enumerates the scope of executive privilege including information prior to the conclusion of treaties, was spared from a declaration of constitutional infirmity.258 However, it is easily discernible from the title and provisions of E.O. 464 that this presidential issuance applies to executive privilege invoked

against the legislature in the context of inquiries in aid of legislation, and not to executive privilege invoked against private citizens asserting their constitutional right to information.259 It thus cannot be used by respondents to discharge their burden of showing basis for exempting the subject JPEPA documents from disclosure to petitioners suing as private citizens. Respondents also rely on Almonte, Chavez v. PCGG, Senate v. Ermita, and PMPF v. Manglapus to carve out from the coverage of the right to information the subject JPEPA documents. Let us put these cases under the lens of scrutiny to determine the correctness of respondents reliance upon them. As noted earlier, Almonte recognized a common law governmental privilege against disclosure, with respect to state secrets bearing on military and diplomatic matters.260 This case involved an investigation by the Office of the Ombudsman that required the Economic Intelligence and Investigation Bureau (EIIB) to produce records pertaining to their personnel. As the Court found that no military or diplomatic secrets would be disclosed by the production of these records and there was no law making them classified, it held that disclosure of the records to the Office of the Ombudsman was warranted. In arriving at this conclusion, the Court noted that the case did not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution, but involved the power of the Office of the Ombudsman to obtain evidence in connection with an investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. It is thus not difficult to see that the facts and issue of Almonte starkly differ from the case of petitioner private citizens who are enforcing their constitutional right to information. Given this distinction, I submit that Almonte cannot provide the backbone for exemption of the subject JPEPA documents from disclosure. The same holds true with respect to Senate v. Ermita in which the constitutionality of E.O. 464 was at issue, and the Court ruled, viz: E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern.261 (emphasis supplied) In Chavez v. PCGG, the Court, citing the above-quoted exchanges of the Constitutional Commissioners regarding the constitutional right to information, recognized that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." Be that as it may, in Chavez v. PCGG, the Court resolved the issue whether the government, through the Presidential Commission on Good Government (PCGG), could be compelled to disclose the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth. The Court did not have occasion to rule on the diplomatic secrets privilege vis--vis the constitutional right to information. It was in PMPF v. Manglapus that the Court was confronted with a collision between a citizens constitutional right to information and executive secrecy in foreign affairs. As afore-discussed, the Court, in denying the petition in an unpublished Resolution, quoted at length Curtiss-Wrights disquisition on the necessity of secrecy in foreign negotiations. Again, the relevant portion of that quote, which was cited by respondents, reads, viz: In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613.

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It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment -perhaps serious embarrassment- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has never since been doubted.262 (emphasis supplied) The Court followed this quote with the conclusion that "(w)e have the same doctrine of separation of powers in the Constitution and the same grant of authority in foreign affairs to the President as in the American system. The same reasoning applies to treaty negotiations by our Government." Taking a hard look at the facts and circumstances of PMPF v. Manglapus, it cannot escape ones eye that this case did not involve a question of separation of powers arising from a legislative inquiry, as in the case of the House of Representatives demand on President Washington for papers relating to the Jay Treaty. In PMPF v. Manglapus, petitioners invoked their right to information under Article III, Section 7; and freedom of speech and the press under Article III, Section 4. They sought to compel the representatives of the President of the Philippines in the then ongoing negotiations of the RP-U.S. Military Bases Agreement to (1) open to petitioners the negotiations/sessions of respondents with their U.S. counterparts on the RP-U.S. Military Agreement; (2) reveal and/or give petitioners access to the items which they (respondents) had already agreed upon with their American counterparts relative to the review of the RP-U.S. Military Bases Agreement; and (3) reveal and/or make accessible to petitioners the respective positions of respondents and their U.S. counterparts on items they had not agreed upon, particularly the compensation package for the continued use by the U.S. of their military bases and facilities in the Philippines. The above quote from Curtiss-Wright, referring to a conflict between the executive and the legislative branches of government, was therefore different from the factual setting of PMPF v. Manglapus. The latter case which involved a collision between governmental power over the conduct of foreign affairs with its secrecy prerogative on the one hand, and the citizens right to information under the Constitution on the other. The PMPF Court did stress that secrecy of negotiations with foreign countries did not violate freedom of access to information and freedom of speech and of the press. Significantly, it quoted The New American Government and Its Work, viz: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter,

Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: "A complicated negotiation cannot be carried through without many, many private talks and discussions, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they do under certain circumstances and would not do under other circumstances If these reportsshould become publicwho would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284). xxx xxx xxx

"There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, It can be said that there is no more rigid system of silence anywhere in the world. (E.J. Young, Looking Behind the Censorship, J.B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have open covenants, openly arrived at. He quickly abandoned his thought. "No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to muscle in. An ill-timed speech by one of the parties or a frank declaration of the concessions which are extracted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved." (The New American Government and Its Work, James T. Young, 4th edition, p. 194)263 (emphasis supplied) It is worth noting that while the above quote speaks of the evil of "open" diplomacy, it does not discuss the value of the right of access to information; much less, one that is constitutional in stature. The New American Government and Its Work was published in 1940, long before the Freedom of Information Act was passed in the U.S. in 1966. It did not and could not have taken into account the expanded statutory right to information in FOIA. It is more doubtful if this book can be used to calibrate the importance of the right of access to information in the Philippine setting, considering its elevation as a constitutional right. Be that as it may, I submit that as both Chavez v. PCGG and PMPF v. Manglapus are extant case law recognizing the constitutionally-based diplomatic secrets privilege over treaty negotiations, respondents have discharged the burden of showing the bases for exempting the subject JPEPA documents from the scope of the constitutional right to information. Prescinding from these premises, the next question to grapple with is whether the exemption or diplomatic secrets privilege over treaty negotiations as recognized in Chavez v. PCGG and PMPF v. Manglapus is absolute or qualified. 2. Diplomatic secrets privilege covering treaty negotiations: An absolute or qualified exemption? It is my considered view that the diplomatic secrets privilege is a qualified privilege or qualified exemption from the coverage of the right to information. In Chavez v. PCGG, the Court cited the following deliberations of the 1986 Constitutional Commission in recognizing that "inter-government

exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest," viz: MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction? MR. OPLE. Yes, subject to reasonable safeguards on the national interest. MR. SUAREZ. Thank you. Will the word "transactions" here also refer to treaties, executive agreements and service contracts particularly? MR. OPLE. I suppose that is subject to reasonable safeguards on national interest which include the national security."264 (emphasis supplied) The above deliberations show that negotiation of treaties and executive agreements may or may not come within the purview of "transactions" covered by the right to information, subject to reasonable safeguards to protect national interest.265 In other words, the diplomatic secrets privilege over treaty negotiations may provide a ground for exemption, but may be overcome if there are reasonable safeguards to protect the national interest. It is thus not an absolute exemption or privilege, but a qualified one. The Freedom of Information Act 2000 of the United Kingdom provides that when an exemption is qualified, the right to information will not be upheld only if the public interest in maintaining the exemption outweighs the public interest in disclosure of the information. The Act treats as qualified exemptions information that "would be likely to prejudicerelations between the United Kingdom and any other State"266 and "confidential information obtained from a State other than the United Kingdom."267 As such, these exemptions may be overcome by a higher public interest in disclosure. It may be argued that the subject JPEPA documents consist of information similar to information covered by the above-cited qualified exemptions under the Freedom of Information Act 2000. The qualification of the above exemptions in the United Kingdom is made in the context of a statutory grant of a right to information. In the Philippines where the right to information has more force and effect as a constitutional right, there is all the more reason to give it stronger muscle by qualifying the diplomatic secrets privilege exemption. This approach minimizes the risk of unjustifiably withholding diplomatic information that is of public concern but covered by overly broad absolute exemptions. We thus come to the task of cobbling the appropriate test to weigh the public interest in maintaining the exemption or privilege over diplomatic secrets and the public interest in upholding the constitutional right to information and disclosing the subject JPEPA documents. 3. The test to use in adjudicating the constitutional right to information vis--vis executive privilege is the "balancing of interests," and not the "showing of need"

While I agree with the ponencias treatment of the diplomatic secrets privilege as a qualified privilege and its recognition of the need to formulate a weighing test, it is my humble view that, contrary to its position, we cannot use the test laid down in U.S. v. Nixon,268 Senate Select Committee v. Nixon,269 and In re Sealed Case (Espy)270that the Court should determine whether there is a "sufficient showing of need" for the disclosure of disputed documents. None of these three cases can provide the proper test. The requirement of "showing of need" applies when executive privilege is invoked against an evidentiary need for information, such as in the case of another government entity seeking information in order to perform its function; that is, the court in U.S. v. Nixon, the Senate in Senate Select Committee, and the grand jury in In re Sealed Case (Espy). In the adjudication of rights guaranteed in the Constitution, however, the Court has never used "showing of need" as a test to uphold rights or allow inroads into them. I respectfully submit that we ought not to weigh the need to exercise the right to free speech or free assembly or free practice of religion. These are freedoms that have been won by all for the benefit of all, without the requisite showing of need for entitlement. When we valuate these constitutional rights, we do not consider their necessity for the performance of a function, as in the case of government branches and entities. The question in the adjudication of constitutional rights is whether the incursion into a right is peripheral or essential, as when there is only a "soft restraint" on the potential extraditees right to procedural due process;271 or whether there is a heavier public interest that must prevail over a constitutional right in order to preserve an ordered society, such as when there is a "clear and present danger" of a substantive evil that the State has a right to prevent as demonstrated in free speech cases,272 or when there is a "compelling state interest" that must override the free exercise of religion.273 The right to information lies at the heart of a government that is not only republican but also democratic. For this reason, Article III, Section 7274 of the 1987 Constitution, calls for "an informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution."275 Thus, employing the "balancing of interests" test, the public interest in upholding this constitutional right of the public to information must be carefully balanced with the public interest in nondisclosure of information in relation to treaty negotiations. This test is in line with the approach adopted in the right to access statute of the United Kingdom and New Zealand. There is a world of difference between employing the "balancing of interests" test and the "showing of need" test adopted by the ponencia from U.S. v. Nixon, Senate Select Committee v. Nixon, and In re Sealed Case (Espy). In U.S. v. Nixon, the "showing of need" was necessary, as the information was being sought by a court as evidence in a criminal proceeding. In Senate Select Committee, the information was being sought by the Senate to resolve conflicting testimonies in an investigation conducted in the exercise of its oversight functions over the executive branch and in aid of legislation pertaining to executive wrongdoing. Finally, in In re Sealed Case (Espy), the information was being sought by the grand jury to investigate whether a government official had committed a crime. In weighing the "showing of need" in all three cases, the courts considered the relevance of the evidence, the availability of other evidence, and the criticality of the information sought in the performance of the functions of the court, the Senate, and the grand jury, respectively. These considerations have no meaning in petitioners assertion of their right to information, for there is no proceeding in relation to which these considerations can be measured. It easily leaps to the eye that these considerations do not apply to adjudication on the constitutional right to information in relation to executive privilege, but the ponencia does not state what the "showing of need" consists of in the context of the publics assertion of the right to information.

Insofar as the constitutional right of access is concerned, the writing on the wall indicates that it suffices that information is of public concern for it to be covered by the right, regardless of the publics need for the information whether to assess the performance of the JPEPA Philippine negotiating panel and express satisfaction or dissatisfaction, or to protest the inclusion of repulsive provisions in the JPEPA, or to keep public officials on their toes by making them aware that their actions are subject to public scrutiny or regardless of the publics lack of need for the information, if they simply want to know it because it interests them.276 The right to information is a constitutional right in and of itself and does not derive its significance only in relation to the exercise of another right, such as the right to free speech or a free press if that is the kind of "function" of an individual that can be equated with the functions of government agencies in the above cases cited by the ponencia. To reiterate, Valmonte teaches that the right to information is not merely an adjunct of the right to free speech and a free press. Stated another way, the right to information is an end in itself, even as it may be exercised in furtherance of other rights or purposes of an individual. To say that one exercises the right to information simply to be informed, and not because of a particular need, is not a meaningless tautology. Thus, instead of using "showing of need" as a passport to access purportedly privileged information, as in the case of government entities needing information to perform a constitutionally mandated duty, the yardstick with respect to individuals exercising a constitutionally granted right to information should be the importance of the right and the public interest in upholding it. Prescinding from these premises, I respectfully submit that the test laid down by the ponencia -which predicates access to information on a "showing of need" understood in the context of U.S. v. Nixon, Senate Select Committee v. Nixon, and In re Sealed Case (Espy) -- will have the pernicious effect of subverting the nature, purpose and wisdom of including the "right to information on matters of public concern" in the Bill of Rights as shown in the above-quoted deliberations of the 1986 Constitutional Commission. It sets an emasculating precedent on the interpretation of this allimportant constitutional right and throws into perdition the philosophy of an open government, painstakingly enshrined by the framers of the 1987 Constitution in the many scattered provisions from beginning to end of our fundamental law. Applying the balancing of interests test to the case at bar leads to the ineluctable conclusion that the scale must be tilted in favor of the peoples right to information for, as shown earlier, the records are bereft of basis for finding a public interest to justify the withholding of the subject JPEPA documents after the negotiations have been concluded. Respondents have not shown a sufficient and specific public interest to defeat the recognized public interest in exercising the constitutional right to information to widen the role of the citizenry in governmental decision-making by giving them a better perspective of the vital issues confronting the nation,277 and to check abuse in government.278 As aforestated, the negotiations are already concluded and the JPEPA has been submitted to the Senate for its concurrence. The treaty has thus entered the ultimate stage in which the people can exercise their right to participate in the discussion on whether the Senate should concur in its ratification or not. This right will be diluted, unless the people can have access to the subject JPEPA documents. The ponencia cites PMPF v. Manglapus, Chavez v. PCGG and Chavez v. Public Estates Authority279 and Senate v. Ermita as authorities for holding that the subject JPEPA documents are traditionally privileged; and emphasizes that "(t)he privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances."280 This approach espoused by the ponencia, however, deviates from the fundamental teaching of Senate v. Ermita that a claim of executive privilege may

be held "valid or not depending on the ground invoked to justify it and the context in which it is made." In U.S. v. Nixon, the leading U.S. case on executive privilege, the U.S. Supreme Court was careful to delineate the applicability of the principles of the case in stating that "(w)e are not here concerned with the balance between the Presidents generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the Presidents interest in preserving state secrets. We address only the conflict between the Presidents assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."281 I respectfully submit that the Court likewise ought to take half a pause in making comparisons and distinctions between the above Philippine cases cited by the ponencia and the case at bar; and examine the underlying reasons for these comparisons and distinctions, lest we mistake apples for oranges. That the application of the "showing of need" test to executive privilege cases involving branches of government and of the "balancing of interests" test to cases involving the constitutional right to information could yield different results is not an absurdity. The difference in results would not be any more absurd than it would be for an accused to be adjudged innocent in a criminal action but liable in a civil action arising from one and the same act he committed.282 There is no absurdity when a distinction is made where there are real differences. Indeed, it is recognized that executive privilege is also constitutionally based. Proceeding from the respondents and the ponencias reliance on Curtiss-Wright, even this case, as aforestated, makes a qualification that the foreign relations power of the President, "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."283 In drawing the contours and restrictions of executive privilege, which finds its origins in the U.S., the constitutional status of the right to information in the Philippines -- which is not true of the statutory right to information in the U.S. -- must at the same time be given life, especially considering the many contested provisions of the JPEPA as shown in the ensuing discussion. D. Right to information, informed debate, and the contested provisions of the JPEPA The exercise of the right to information and informed debate by the public on the JPEPA are crucial in light of the comprehensiveness and impact of this agreement. It is an amalgam of two distinct agreements - a bilateral free trade agreement and a bilateral investment agreement. Thus, international and constitutional law expert Justice Florentino P. Feliciano cautions that we must be "twice as awake, twice as vigilant" in examining very carefully the provisions of the agreement.284 The nearly 1,000-page JPEPA contains 16 chapters, 165 articles and eight annexes covering a wide range of economic cooperation including trade in goods, rules of origin, customs procedures, paperless trading, mutual recognition, trade in services, investment, movement of natural persons, intellectual property, government procurement, competition, improvement of the business environment, cooperation and dispute avoidance and settlement. The JPEPAs comprehensive scope is paralleled by the widespread expression of concern over its ratification. In the Senate, there is a move to concur in the Presidents ratification provided that the JPEPA comply with our constitutional provisions on public health, protection of Filipino enterprises, ownership of public lands and use of natural resources, ownership of private lands, reservation of certain areas of investment to Filipinos, giving to Filipinos preference in the national economy and patrimony, regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and materials, practice of professions, ownership of educational institutions, state regulation of transfer of technology, ownership of mass media, and ownership of advertising firms.

Among scholars and the public, not a few have registered strong reservations on the ratification of the JPEPA for its being studded with provisions that are detrimental to the Filipino interest.285 While the executive branch and other groups have expressed support for the JPEPA, these contested provisions, at the very least, merit public debate and access to the subject JPEPA documents, for they have far-reaching effects on the publics interest and welfare. Two highly contested JPEPA provisions are Articles 89 and 94. Advocates against the JPEPA contend that these provisions run afoul of the 1987 Constitution, primarily Article XII, on the National Economy and Patrimony. Article 89 of the JPEPA provides for National Treatment, viz: Article 89 National Treatment Each Party shall accord to investors of the other Party and to their investments treatment no less favorable than that it accords, in like circumstances, to its own investors and to their investments with respect to the establishment, acquisition, expansion, management, operation, maintenance, use, possession, liquidation, sale, or other disposition of investments. In the opinion rendered by Justice Feliciano in response to the invitation to deliver a statement at a hearing of the Senate Joint Committee on Foreign Relations and the Committee on Trade and Commerce, he explained that the "national treatment" obligation requires the Philippines to "treat Japanese investors as if they were Philippine nationals, and to treat Japanese investments in the Philippines as if such investments were owned by Philippine nationals."286 This provision raises serious constitutional questions and need untrammeled discussion by the public, as entry into certain sectors of economic activity in our country is restricted to natural persons who are Philippine citizens or to juridical persons that are at least sixty, seventy or one hundred percent owned by Philippine citizens. Among these constitutional provisions are Article XII, Section 2 on the utilization of lands and other natural resources of the Philippines;287 Article XII, Section 11 on the operation of public utilities;288 Article XII, Section 14, paragraph 2 on the practice of professions;289 and Article XIV, Section 4(2),290 among others.291 To be sure, Article 94 of the JPEPA provides for an option on the part of the Philippines to uphold the constitutional and statutory provisions referred to above despite their collision with the "national treatment" obligation in Article 89. That option is exercised by listing, in the Schedule to Part I of Annex 7 of the JPEPA, the existing non-conforming constitutional and legal provisions that the Philippines would like to maintain in effect, notwithstanding the requirements of Article 89 of the JPEPA.292 The Philippines exercised that option by attaching its Schedule to Part I of Annex 7 of the JPEPA. Be that as it may, some scholars note that the Philippine Schedule is not a complete list of all the currently existing constitutional and statutory provisions in our legal system that provide for exclusive access to certain economic sectors by Philippine citizens and Philippine juridical entities that have a prescribed minimum Philippine equity content. They claim that the most dramatic example of an omission is the aforementioned Article XII, Section 11 of the Constitution, relating to the operation of public utilities. They cite other examples: the afore-mentioned Article XII, Section 14 relating to the practice of all professions, save in cases prescribed by law; Article XIV, Section 4(2) relating to ownership and administration of educational institutions; Article XVI, Section 11(1)293relating to mass media; and Article XVI, Section 11(2)294 relating to the advertising industry.295 On trade and investment, former U.P. College of Law Dean Merlin Magallona, an international law expert, explained as resource person in the hearing of the Senate Joint Committee on Foreign Relations and the Committee on Trade and Commerce that, under Articles 96 and 98 of the JPEPA, the Philippines stands as an insurance company for Japanese investments against private acts.296

Articles 96 and 98 of the JPEPA provide, viz: Article 96 Protection from Strife 1. Each Party shall accord to investors of the other Party that have suffered loss or damage relating to their investments in the Area of the former Party due to armed conflict or state of emergency such as revolution, insurrection, civil disturbance or any other similar event in the Area of that former Party, treatment, as regards restitution, indemnification, compensation or any other settlement, that is no less favorable than the most favorable treatment which it accords to any investors. 2. Any payments made pursuant to paragraph 1 above shall be effectively realizable, freely convertible and freely transferable. Article 98 Subrogation 1. If a Party or its designated agency makes a payment to any of its investors pursuant to an indemnity, guarantee or insurance contract, arising from or pertaining to an investment of that investor within the Area of the other Party, that other Party shall: (a) recognize the assignment, to the former Party or its designated agency, of any right or claim of such investor that formed the basis of such payment; and (b) recognize the right of the former Party or its designated agency to exercise by virtue of subrogation any such right or claim to the same extent as the original right or claim of the investor. 2. Articles 95, 96 and 97 shall apply mutatis mutandis as regards payment to be made to the Party or its designated agency first mentioned in paragraph 1 above by virtue of such assignment of right or claim, and the transfer of such payment. Dean Magallona pointed out that under Articles 96 and 98 of the JPEPA, the Japanese government may execute with a Japanese investor in the Philippines a contract of indemnity, guaranty, or insurance over loss or damage of its investments in the Philippines due to revolution, insurrection, or civil disturbance. Compensation by the Japanese government to its investor under such contract will give rise to the right of the Japanese government to be subrogated to the right or claim of the Japanese investor against the Philippine government. The Philippines recognizes explicitly this assignment of right or claim of the Japanese investor against the Philippine Government under Article 98. In effect, he warns that the Philippines has made itself liable for acts of private individuals engaged in revolution, insurrection or civil disturbance. He submits that this is an abdication of sovereign prerogative, considering that under general or customary international law, the Philippines is subject to international responsibility only by reason of its own sovereign acts, not by acts of private persons.297 Environmental concerns have also been raised in relation to several provisions of the JPEPA, among which is Article 29 on Originating Goods, which provides, viz: Article 29 Originating Goods

1. Except as otherwise provided for in this Chapter, a good shall qualify as an originating good of a Party where: (a) the good is wholly obtained or produced entirely in the Party, as defined in paragraph 2 below; (b) the good is produced entirely in the Party exclusively from originating materials of the Party; or (c) the good satisfies the product specific rules set out in Annex 2, as well as all other applicable requirements of this Chapter, when the good is produced entirely in the Party using nonoriginating materials. 2. For the purposes of subparagraph 1(a) above, the following goods shall be considered as being wholly obtained or produced entirely in a Party: xxx xxx xxx

(i) articles collected in the Party which can no longer perform their original purpose in the Party nor are capable of being restored or repaired and which are fit only for disposal or for the recovery of parts or raw materials; (j) scrap and waste derived from manufacturing or processing operations or from consumption in the Party and fit only for disposal or for the recovery of raw materials; (k) parts or raw materials recovered in the Party from articles which can no longer perform their original purpose nor are capable of being restored or repaired; and (l) goods obtained or produced in the Party exclusively from the goods referred to in subparagraphs (a) through (k) above. Annex 1298 of the JPEPA reduced the tariff rates for these goods to zero percent, below the minimum set forth in the current Philippine schedule, JPEPA opponents point out.299 There are allegations from the public that the above provisions on trade of toxic and hazardous wastes were deleted in the working draft text of the JPEPA as of 21 April 2003, but these provisions found their way back into the final text signed by President Macapagal-Arroyo. If true, it would be in the publics interest to know why said provisions were put back, as they affect the public welfare; and how it is in the Philippine interest to include them in the JPEPA.300 Various concerned sectors have also expressed their objection to some provisions of the JPEPA. A substantial number of fishermen harp on the inadequacy of protection given to their sector and the violation of the Philippine Constitution with respect to deep-sea fishing. In Annex 7, 2B (Schedule of the Philippines)301 of the JPEPA, the Philippine government made a reservation on national treatment by invoking Article 12 of the 1987 Constitution under the heading: "Sector: Fisheries, Subsector: Utilization of Marine Resource."302 The measures invoked by the Philippine government are: 1) no foreign participation is allowed for small-scale utilization of marine resources in archipelagic waters, territorial sea and Exclusive Economic Zones; 2) for deep-sea fishing corporations, associations or partnerships having a maximum 40 percent foreign equity can enter into coproduction, joint venture or production-sharing agreement with the Philippine government.303 Concerned sectors contend, however, that the second measure violates Article XII, Section 2 of the Philippine Constitution which mandates, without qualification, the protection of the

nations marine wealth in Philippine archipelagic waters, territorial sea and EEZ; and reserves "its use and enjoyment exclusively to Filipino citizens."304 The food sector also complains about the insufficiency of protection from export subsidies under Article 20 of the JPEPA, which, according to it, makes it possible for Japan to engage in agriculture dumping, one of the most trade-distorting practices of rich countries.305 Article 20 of the JPEPA, provides viz: Article 20 Export Duties Each Party shall exert its best efforts to eliminate its duties on goods exported from the Party to the other Party. (emphasis supplied) This sector raises the objection that while the JPEPA only requires "best efforts," both the JapanIndonesia Economic Partnership Agreement (JIEPA) and the Japan-Malaysia Economic Partnership Agreement (JMEPA) disallow the introduction or the maintenance of agriculture export subsidies.306 Without adjudging the merits of objections to the above provisions of the JPEPA, the fact that these concerns are raised and that these provisions will impact on the lives of our people stress the need for an informed debate by the public on the JPEPA. Rooted in the unique Philippine experience, the 1987 Constitution strengthened participatory democracy not only in our political realm but also in the economic arena. Uninformed participation in the governance of the country impairs the right of our people to govern their lives while informed debate serves as the fountainhead from which truth and the best interest of the country will spring. By upholding the constitutional right to information over the invocation of executive privilege in the instant case, it is my considered view that the subject JPEPA documents should be disclosed considering the particular circumstances of the case at bar. In arriving at this conclusion, a balancing of interests test has to be employed which will allow the executive to show the public interest it seeks to protect in invoking executive privilege. The test serves as a safeguard against disclosure of information that should properly be kept secret. There is thus no foundation for the fears expressed in the Separate Opinion of Justice Tinga, viz: "(The ruling) would establish a general rule that diplomatic negotiations of treaties and other international agreementsbelong to the public record since it is encompassed within the constitutional right to informationif indeed the Philippines would become unique among the governments of the world in establishing that these correspondences related to treaty negotiations are part of the public record, I fear that such doctrine would impair the ability of the Philippines to negotiate treaties or agreements with foreign countries." As aforediscussed, allowing public access to trade agreement negotiations and draft texts, in various degrees and ways, has gained momentum in the landscape of U.S. diplomatic and foreign relations. I submit that, when warranted, we must overcome the entropy of the old tradition of secrecy. Contrary to the Separate Opinion of Justice Tinga, the Executive as the custodian of records of negotiations of treaties and other international agreements has the discretion to classify information as confidential in accordance with applicable laws, and not let it become part of the public record of a government in the sunshine. But when the executive is haled to court to enforce a constitutional right to this information, it is the courts task in each particular case to balance the executives need for secrecy in treaty negotiations with the constitutional right to information, and decide whether that particular information should be disclosed or kept confidential.307 Finally, the discussion in the Separate Opinion of Justice Tinga on the application of Article 32, Supplementary Means of Interpretation, of the Vienna Convention on the Law of Treaties308 and the question of whether the subject JPEPA documents constitute "preparatory work" under this provision are premature, as the

Philippine Senate has not concurred in the ratification of the JPEPA; hence, it has not entered into force. I submit that the question is not relevant to the resolution of the case at bar, as we are not here engaged in an interpretation of the JPEPA. In sum, transparency and opacity are not either-or propositions in the conduct of international trade agreement negotiations. The degree of confidentiality necessary in a particular negotiation is a point in a continuum where complete disclosure and absolute secrecy are on opposite ends.309 In assigning this fulcrum point, it is my humble view that the Court should balance the need for secrecy of the Executive and the demand for information by the legislature or the public. The balancing act in every case safeguards against disclosure of information prejudicial to the public interest and upholds the fundamental principle enunciated in Senate v. Ermita310 -- that a claim of executive privilege "may be valid or not depending on the ground invoked to justify it and the context in which it is made."311 We elevated the right to information to constitutional stature not without reason. In a democracy, debate -- by the people directly or through their representatives in Congress is a discussion of and by the informed and not an exchange of surpluses of ignorance.312 In the arena of economic governance, the right to debate and participate is exercised not as an end in itself. Especially for the powerless whose sword and shield against abuse is their voice, the exercise of the right is not merely rhetoric. It is a fight from the gut to satisfy basic human needs and lead a humane life. I vote to grant the petition. REYNATO S. PUNO Chief Justice

Footnotes
1

Philippine Yearbook 2005, National Statistics Office (2005), p. 44. Id. at 50-51, 54-55.

De Leon, A., "Entering the Lists: SMEs in Globalized Competition," Bridging the Gap: Philippine Small and Medium Enterprises and Globalization, Alfonso, O., ed. (2001), p. 49.
4

Pope John Paul II, "Ecclesia in Asia," Synod of Bishops in Asia, 1999. Petition, p. 17; see also Comment, p. 4. Id. Id. at 18. 2, Executive Order No. 213, promulgated May 28, 2003. Petition, p. 18; see also Comment, p. 4 and Annex C. Id. at 19.

10

11

Id. at 19; see also Annex C. Id. at 21-22. Id. at 22. Id. See also Annex I. Id. See also Annex J. Id. at 23-24, Annex K. Id. at 25, citing TSN, Committee Hearing on Resolution No. 551, 12 October 2005. Id. at 26, Annexes M-1 to M-15, N-1 to N-7. Id. at 28, Annex P. Respondents Manifestation, pp. 2-3. Petitioners Manifestation and Motion, p. 3. Ponencia.

12

13

14

15

16

17

18

19

20

21

22

23

Comment, p. 24; ponencia. 1987 Phil. Const. Art. VII on the Executive Department, 21 provides, viz: Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
24

299 U.S. 304 (1936).

25

Ducat, C., Constitutional Interpretation: Powers of Government (2000), Vol. 1., p. 252; Powell, H., "The Presidents Authority over Foreign Affairs: An Executive Branch Perspective," 67 George Washington Law Review (March 1999), n.8. See also Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corporation, Civil Aeronautics Board, 333 U.S. 103 (1948); Webster v. Doe, 486 U.S. 592, 605-06 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982).
26

See Santos v. Executive Secretary Catalino Macaraig and Secretary Raul Manglapus, G.R. No. 94070, April 10, 1992, 208 SCRA 74, and Peoples Movement for Press Freedom, et al. v. Manglapus, et al., G.R. No. 84642, September 13, 1988.
27

United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 319-320 (1936), citing 1 Messages and Papers of the Presidents, 194. Powell, H., "The Presidents Authority over Foreign Affairs: An Executive Branch Perspective," 67 George Washington Law Review 527 (1999). See also Henkin, L. Foreign Affairs and the United States Constitution 36 (2nd ed.)
28

29

United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 331 (1936).

Justice Sutherlands use of the "sole organ" remark in Curtiss-Wright prompted Justice Robert Jackson to say in the 1952 landmark case Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 579) that at best, what can be drawn from Sutherlands decision is the intimation that the President "might act in external affairs without congressional authority, but not that he might act contrary to an act of Congress." Justice Jackson also noted that "much of the (Sutherland) opinion is dictum." In 1981, the District of Columbia Circuit cautioned against placing undue reliance on "certain dicta" in Sutherlands opinion: "To the extent that denominating the President as the sole organ of the United States in international affairs constitutes a blanket endorsement of plenary Presidential power over any matter extending beyond the borders of this country, we reject that characterization." (American Intern. Group v. Islamic Republic of Iran, 657 F.2d 430, 438 n.6 [D.C. Cir. 1981 ) (Fisher, L., Invoking Executive Privilege: Navigating Ticklish Political Waters, 8 William and Mary Bill of Rights Journal [April 2000], p. 583, 608-609).
30

In Dames & Moore v. Regan (453 U.S. 654 [1981]), the U.S. Supreme Court observed that sixteen years after Curtiss-Wright was decided, Justice Jackson responded to the virtually unlimited powers of the executive in foreign affairs in the landmark case Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 579, p. 641), viz: "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image."
31

U.S. Const. Art. II, 2, cl. 2 provides, viz: "(The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. Const. Art. I, 8, cl. 3 provides, viz: "The Congress shall have the powerto regulate Commerce with foreign Nations . . . ."
32 33

U.S. Const. Art. I, 8, cl. 1.

34

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?," 12 William and Mary Bill of Rights Journal 979, 982 (2004). "See generally 1 The Debates in the Several Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., Burt Franklin reprints, photo. reprint 1987) (2d ed. 1836); The Federalist No. 75 (Alexander Hamilton); James Madison, Journal of the Federal Convention (E.H. Scott ed., Books for Libraries Press 1970) (1840); 2 James Madison, The Debates in the Federal Convention of 1787 which Framed the Constitution of the United States of America (Gaillard Hunt & James Brown Scott eds., 1987)." Id. at Note 25.
35

Id., citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 224 (1995) ("Hardly anything can be found in the documentation relating to the drafting of the Constitution so as to glean any intent on the separation of powers in the area of foreign commerce."). Id. at Note 26.
36

Id. at 981-82, citing 148 Cong. Rec. S10,660 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus).

37

Id. "See The Federalist No. 75 (Alexander Hamilton). Another concern was that the legislative branch would not represent the best interests of the nation as a whole, whereas the President would place the national interests ahead of those of individual states. See Robert Knowles, Comment, Starbucks and the New Federalism: The Courts Answer to Globalization, 95 Nw. U. L. Rev. 735, 771 (2001) (referring to the "concerns raised by Madison that the treaty-maker should represent the interests of the entire nation")." Id. at Note 21.
38

Id. at 982, citing John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L. Rev. 703, 760 (2002).
39

See Michael A. Carrier, All Aboard the Congressional Fast Track: From Trade to Beyond, 29 Geo. Wash. J. Int'l L. & Econ. 687, 688-89 (1996).
40

Supra note 34.

41

Koh, H. & Yoo, J., "Dollar Diplomacy/Dollar Defense: The Fabric of Economics and National Security Law," 26 Intl Law 715, 720 (1992).
42

Wilson, T., "Note, Who Controls International Trade? Congressional Delegation of the Foreign Commerce Power," 47 Drake L. Rev. 141, 164 (1998).
43

Supra note 34, citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 208-209 (1995) ("Hardly anything can be found in the documentation relating to the drafting of the Constitution so as to glean any intent on the separation of powers in the area of foreign commerce."). Id. at Note 26.
44

Id., citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 208 (1995).
45

Supra note 42 at 166. Id. referring to the Tariff Act of 1922.

46

47

Supra note 34 at 983. The Smoot-Hawley Tariff Act, Pub. L. No. 71-361, 46 Stat. 590 (1930). "The Smoot-Hawley Tariff Act was the ultimate display of U.S. protectionism, John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Int'l L. 203, 210 (1995), and resulted from Congress caving to special interests. Harold Hongju Koh, Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha, 18 N.Y.U. J. Intl L. & Pol. 1191, 1194 (1986)("Because congressional logrolling and horsetrading contributed to every individual duty rate, SmootHawley set the most protectionist tariff levels in U.S. history.")." Id. at Note 36.
48

Supra note 42 at 166 referring to the Tariff Act of 1922.

49

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?", 12 William and Mary Bill of Rights Journal 979, 984 (2004), citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 211 (1995).

50

Id. citing Reciprocal Trade Agreements Act of 1934, Pub. L. No. 73-316, 48 Stat. 943 (1934) (allowing the President to negotiate tariff agreements with foreign nations and implement them by Presidential Proclamation without congressional approval).
51

Id. at Note 41, citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 211 (1995).
52

Id., citing John Linarelli, International Trade Relations and the Separation of Powers Under the United States Constitution, 13 Dick. J. Intl L. 203, 211-212 (1995), citing Reciprocal Trade Agreements Act of 1934.
53

Koh, H., "Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha," 18 N.Y.U. J. Intl L. & Pol. 1191, 1196 (1986). Koh, H., "The Fast Track and United States Trade Policy," 18 Brook. J. Intl L. 143, 143-48 (1992).
54 55

Trade Act of 1974, 19 U.S.C.A. 2191-94.

56

Carr, T., "The Executive Trade Promotion Authority and International Environmental Review in the Twenty-First Century," 25 Houston Journal of International Law 141, 144-145 (2002).
57

Id. at 145. Id.

58

59

Id. citing Powell, F., "Environmental Protection in International Trade Agreements: The Role of Public Participation in the Aftermath of the NAFTA," 6 Colo J. Intl Envtl. L. & Poly 109, 116 (1995).
60

Supra note 49 at 984, citing Wilson, T., "Note, Who Controls International Trade? Congressional Delegation of the Foreign Commerce Power," 47 Drake L. Rev. 141, 169-171 (1998). "Nontariff barriers (NTBs) are essentially anything other than a tariff or quota that is used to restrict trade. The General Agreement on Tariffs and Trade (GATT) broadly defines NTBs as [l]aws, regulations, judicial decisions and administrative rulings of general application . . . pertaining to . . . requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefore, or affecting their sale, distribution, transportation, insurance, warehousing, inspection, exhibition, processing, mixing or other use . . . . General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194, art. X, para. 1. Examples include customs valuation, import licensing rules, subsidies, compatibility standards, quality standards, health and safety regulations, and labeling laws. John J. Jackson et al., Legal Problems of International Economic Relations 411 (4th ed. 2002)." Id. at Note 47.
61

Id. at 985.

62

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?," 12 William and Mary Bill of Rights Journal 979, 984-85 (2004), citing Wilson, T., "Note, Who Controls International Trade? Congressional Delegation of the Foreign Commerce Power," 47 Drake L. Rev. 141, 170 (1998), referring to the Trade Act of 1974.

63

Id. Id. citing Wilson, supra note 62 at 170-172, referring to the Trade Act of 1974. Id.

64

65

66

Id., at 985 (2004), citing Koh, H., "Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha," 18 N.Y.U. J. Intl L. & Pol. 1191, 1200-03.
67

Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat. 2948.

Koh, H., "The Fast Track and United States Trade Policy," 18 Brook. J. Intl L. 143, 149 (1992).
68 69

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?," 12 William and Mary Bill of Rights Journal 979, 986 (2004), citing Koh, H., supra note 68 at 150.
70

Pub. L. No. 100-418, 102 Stat. 1107. Supra note 68 at 151.

71

72

Supra note 69, citing Koh, H., "The Fast Track and United States Trade Policy," 18 Brook. J. Intl L. 143, 151 (1992), referring to the 1988 Act 1103(b)(5)(A)-(B)). "Section 1103(b)(5)(A) defines the term extension disapproval resolution as: a resolution of either House of the Congress . . . [that] disapproves the request of the President for the extension . . . of the [fast-track] provisions to any implementing bill submitted with respect to any trade agreement entered into under section 1102(b) or (c) of such Act after May 31, 1991, because sufficient tangible progress has not been made in trade negotiations. Section 1103(b)(5)(B) provides that extension disapproval resolutions may be introduced in either House of Congress by any member of such House [and] shall be jointly referred, in the House of Representatives, to the Committee on Ways and Means and the Committee on Rules." Id. at Note 60. Id., citing C. ONeal Taylor, Fast Track, Trade Policy, and Free Trade Agreements: Why the NAFTA Turned into a Battle, 28 Geo. Wash. J. Intl L. & Econ. 1, 31 (1994): The President's agreements were only to receive fast track treatment if they were entered into before June 1, 1991. For agreements entered into after May 31, 1991, but before June 1, 1993, fast track was available only if the President requested an extension of negotiating authority and neither house adopted an extension disapproval resolution before June 1, 1991.
73 74

Id. at 988, citing Housman, R., "The Treatment of Labor and Environmental Issues in Future Western Hemisphere Trade Liberalization Efforts," 10 Conn. J. Intl L. 301, 311-13 (1995). "Initially, the (Clinton) administration sought a virtually unfettered extension of fasttrack authority for a seven year period. . . . This first proposal was met with

immediate and unified opposition . . . . (T)his first surge of opposition amounted to a game of policy chicken. Facing continuing opposition, the administration floated a second fast-track proposal . . . . Republicans and the business community once again came out against this new proposal. . . . (T)he administration dropped its second fast-track proposal and floated in its place yet another proposal. . . . While the third proposal garnered quick support from opponents of the prior two proposals, it did not fare well (with other groups). The administration rushed to counter this opposition, relying heavily on the argument that the extension of fast-track was vital to give the administration credibility. . . . In the end, the Uruguay Round bill went forward without any fast-track extension." Id. at Note 70 (footnotes omitted).
75

Id., citing Lenore Sek, Congr. Res. Serv., Pub. No. IB10084, Trade Promotion Auth. (FastTrack Authority for Trade Agreements): Background & Devs. in the 107th Congress (2003), detailing multiple proposals and speeches made by Clinton and Bush requesting renewal of fast-track authority); Clinton Makes Fast Track Plea To Congress, (Nov. 5, 1997), at http:// www.cnn.com/ALLPOLITICS/1997/11/05/trade/ (last visited Mar. 4, 2003); David Schepp, Bush Wants More Trade Powers, BBC News Online (Mar. 23, 2001), available at http://news.bbc.co.uk/1/hi/business/1238717.stm. Id., citing John R. Schmertz & Mike Meier, U.S. Enacts New "Fast-Track" Trade Bill, 8 Intl L. Update 126 (2002).
76 77

19 U.S.C.A. 3801-13. Trade Act of 2002 3804 (detailing the new fast-track procedures).

78

79

Supra note 69, citing 148 Cong. Rec. S10,661 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus).
80

Id. at 989.

81

Id., citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) ("This will give Congress a chance to affect the outcome of the negotiations well before they occur.").
82

Id., citing 148 Cong. Rec. S10,660 (daily ed. Oct. 17, 2002) (statement of Sen. Baucus) ("Indeed, the Trade Act of 2002 contemplates an even closer working relationship between Congress and the Administration . . . .").
83

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?," 12 William and Mary Bill of Rights Journal 979, 989 (2004), citing Trade Act of 2002 3805(b). "If the agreement negotiated by the administration does not meet the congressional requirements, there are ways that either House of Congress can derail a trade agreement. 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (referring to Trade Act of 2002 3805(b))." Id. at Note 80.
84

Trade Act of 2002 3803 provides the authorization for the President to negotiate a trade agreement with a foreign country regarding tariff and/or nontariff barriers and the guidelines he must follow.

85

Trade Act of 2002 3803.

86

Id., 3803(a). Limitations on modifications to tariff barriers primarily set minimums for rate of duty reductions.
87

Supra note 83 at 990, citing Trade Act of 2002 3803(b) (limiting agreements as provided in sections 3802 and 3804). "The President's actions are considerably more restricted under the Trade Act of 2002 than under previous legislation. Compare Trade Act of 1974, 19 U.S.C.A. 2101-2495 (1974) and Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107 with Trade Act of 2002, 3801-13." Id. at Note 84.
88

Trade Act of 2002 3804(a). Id., 3804. Id., 3804(b)-(c). Id., 3807. Id., 3807(a)(2)-(3).

89

90

91

92

93

Id., 3807(a)(4). "Without accreditation, congressional representatives would be bystanders and would not be permitted to participate directly in negotiations. As accredited representatives, the members of the COG have the authority to act on behalf of the United States in negotiations." Supra note 83 at 992, citing Note 98.
94

Wright, L., "Trade Promotion Authority: Fast Track for the Twenty-First Century?," 12 William and Mary Bill of Rights Journal 979, 992 (2004), citing 148 Cong. Rec. S9108 (daily ed. Sept. 24, 2002) (statement of Sen. Grassley); see also Trade Act of 2002 3807(a)(4). The purpose of the COG is "to provide advice to the Trade Representative regarding the formulation of specific objectives, negotiating strategies and positions, the development of the applicable trade agreement, and compliance and enforcement of the negotiated commitments under the trade agreement."
95

Trade Act of 2002 3804(a)(2).

96

Id., 3804(a)(1) (requiring that written notice be provided at least ninety days prior to the commencement of negotiations).
97

Id., 3804(a)(1).

98

Supra note 94, citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (referring to 3804(a)(3)).
99

Id., citing 148 Cong. Rec. S7768 (daily ed. Aug. 1, 2002) (statement of Sen. Baucus) (setting limitations on trade authorities procedures Trade Act of 2002 3805(b)).
100

Id., citing 148 Cong. Rec. S9107 (daily ed. Sept. 24, 2002) (statement of Sen. Grassley). Supra note 94 at 992.

101

102

401-402, Tariff and Customs Code of the Philippines, Presidential Decree No. 1464, promulgated June 11, 1978, amending Republic Act No. 1937, An Act to Revise and Codify the Tariff and Customs Laws of the Philippines, enacted on June 22, 1957.
103

Congress authorized the President to enter into foreign trade agreements and to impose and regulate duties and other import restrictions, under Rep. Act No. 1189, entitled "An Act Authorizing the President of the Republic of the Philippines to Enter into Trade Agreements with Other Countries for a Limited Period and for Other Purposes," enacted on June 20, 1954; and Rep. Act. No. 1937, entitled "An Act to Revise and Codify the Tariff and Customs Laws of the Philippines," enacted on June 22, 1957.
104

Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides, viz: WHEREAS, the Tariff and Customs Code of the Philippines known as Republic Act No. 1937 has been amended by several Presidential Decrees dating back to the year 1972; xxx xxx xxx

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order and decree as follows: Section 1. Codification of all Tariff and Customs Laws. All tariff and customs laws embodied in the present Tariff and Customs Code and various laws, presidential decrees and executive orders including new amendments thereto made in this Decree, are hereby consolidated into a single Code to be known as the Tariff and Customs Code of 1978 which shall form an integral part of this Decree. (emphasis supplied)
105

402, Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides for the authority of the President to enter into trade agreements, viz: Sec. 402. Promotion of Foreign Trade. a. For the purpose of expanding foreign markets for Philippine products as a means of assistance in the economic development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relations between the Philippines and other countries, the President, is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof; (emphasis supplied) 402, Rep. Act. No. 1937, provides for the authority of the President to enter into trade agreements, viz: Sec. 402. Promotion of Foreign Trade a. For the purpose of expanding foreign markets for Philippine products as a means of assisting in the economic development of the country, in overcoming domestic

unemployment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relationship between the Philippines and other countries, the President, upon investigation by the Commission and recommendation of the National Economic Council, is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof; (emphasis supplied)
106

401, Tariff and Customs Code of 1978, Presidential Decree No. 1464, provides, viz: Sec. 401. Flexible Clause. In the interest of national economy, general welfare and/or national security, and subject to the limitations herein prescribed, the President, upon recommendation of the National Economic and Development Authority (hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing protective rates of import duty (including any necessary change in classification). The existing rates may be increased or decreased to any level, in one or several stages but in no case shall the increased rate of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2) to establish import quota or to ban imports of any commodity, as may be necessary; and (3) to impose an additional duty on all imports not exceeding ten (10%) percent ad valorem whenever necessary; (emphasis supplied) 401, Rep. Act. No. 1937, provides, viz: Sec. 401. Flexible Clause. The President, upon investigation by the Commission and recommendation of the National Economic Council, is hereby empowered to reduce by not more than fifty per cent or to increase by not more than five times the rates of import duty expressly fixed by statute (including any necessary change in classification) when in his judgment such modification in the rates of import duty is necessary in the interest of national economy, general welfare and/or national defense. (emphasis supplied)

107

Aruego, J., The Framing of the Philippine Constitution (1936), Vol. 1, p. 388. 2 Records of the Constitutional Commission, p. 191. The 1973 Constitution similarly provides in Article VIII, Sec. 17(1), viz: Sec. 17(1). The National Assembly may by law authorize the Prime Minister to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts.

108

109

110

United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 320 (1936). Id.

111

112

See Comment, p. 2. The JPEPA is a comprehensive bilateral free trade agreement (FTA). FTAs cover both tariff and non-tariff barriers.
113

Id. at 19; see also Annex C. Ponencia. G.R. No. 169777, April 20, 2006, 488 SCRA 1, 45.

114

115

116

Iraola, R. "Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions," 87 Iowa Law Review 1559, 1571 (2002).
117

G.R. No. 95367, May 23, 1995, 244 SCRA 286.

118

Id., citing 10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4 and 7, pp. 427-29, 434.
119

G.R. No. 130716, December 9, 1998, 299 SCRA 744. 5 Records of the Constitutional Commission, p. 25. 345 U.S. 1 (1953). Id. at 7-8, 10. Petition, Annex I. Comment, p. 21. Id. at 23. Id. at 28, Annex P.

120

121

122

123

124

125

126

127

In Reynolds, the Secretary of the Air Force filed a formal "Claim of Privilege" and objected to the production of the document "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force." The Judge Advocate General of the U.S. Air Force also filed an affidavit, which claimed that the demanded material could not be furnished "without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." On the record before the trial court, it appeared that the accident that gave rise to the case occurred to a military plane that had gone aloft to test secret electronic equipment. The Reynolds Court found that on the basis of all the circumstances of the case before it, there was reasonable danger that the accident investigation report would contain references to the secret electronic equipment that was the primary concern of the mission, which would be exposed if the investigation report for the accident was disclosed.
128

345 U.S. 1, 8 (1953). Concurring Opinion of Justice Antonio T. Carpio.

129

130

Separate Opinion of Justice Dante O. Tinga.

" At the time when the Committee was requesting the copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege
131

Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations" Comment, p. 21.
132

In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35 L.Ed.2d 119 (1973).
133

157 F. Supp. 939 (Ct. Cl. 1958). Id., Note 4.

134

135

Kennedy, M., "Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege," 99 Northwestern University Law Review (hereafter Kennedy) 1769 (2005).
136

157 F. Supp. 939 (Ct. Cl. 1958), pp. 945-946. Id. at 946. Id. at 947. Id. at 947-948.

137

138

139

140

Kennedy, supra note 135 at 1769; see also Iraola, R. "Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions," Iowa Law Review, vol. 87, no. 5, August 2002, pp. 1559 and 1578, citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995), affd, 76 F.3d 1232 (D.C. Cir. 1996).
141

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980). Id.

142

143

144

145

In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 736, citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).

146

Id. at 736. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984). In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).

147

148

149

Id. at 737-38; see also In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992) (discussing how, in balancing competing interests, the court should consider a number of factors such as the relevance of the evidence, seriousness of the litigation, and availability of other evidence); Jensen, K., "The Reasonable Government Official Test: A Proposal for the Treatment of Factual Information under the Federal Deliberative Process Privilege," 49 Duke L.J. 561, 578-579 (1999) (discussing and identifying the factors).
150

The In re Sealed Case (Espy) arose because of allegations that U.S. Secretary of Agriculture, Mike Espy, may have improperly accepted gifts from individuals and organizations with business before the U.S. Department of Agriculture. These allegations led to the appointment of an Independent Counsel, to investigate the allegations and to prosecute any related violations of federal law that the Office of the Independent Counsel (OIC) reasonably believed had occurred. The same allegations led the President of the United States to direct the White House Counsel to investigate Espys conduct in order to advise the President on whether he should take executive action against Espy. The White House publicly released a report on Espy produced by the White House Counsel. Subsequently, a grand jury issued the subpoena duces tecum at issue in this case. The subpoena sought all documents on Espy and other subjects of the OICs investigation that were "accumulated for, relating in any way to, or considered in any fashion, by those persons who were consulted and/or contributed directly or indirectly to all drafts and/or versions" of the White House Counsels report. The subpoena specifically requested notes of any meetings in the White House concerning Espy and of any conversations between Espy or his counsel and White House employees. The White House produced several folders of documents, but withheld some on the basis mostly of deliberative process privilege.
151

G.R. No. 180643, March 25, 2008.

152

With respect to deliberative process privilege, only pre-decisional and deliberative materials are covered; hence, the agency must first show that the agency material sought is pre-decisional and deliberative for a qualified privilege to attach. With respect to presidential communications privilege, the presidential communications must be made in the performance of the Presidents responsibilities of his office and in the process of shaping policies and making decisions. Once this requisite is satisfied, a qualified privilege attaches to the presidential communication.
153

In re Sealed Case, 121 F.3d. at 737. Id. at 745.

154

155

In re Sealed Case (Espy), 121 F.3d 729 (1997), p. 737, citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd,384 F.2d 979 (D.C.Cir.1967); accord NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 86-93, 93 S.Ct. 827, 835-39, 35 L.Ed.2d 119 (1973).

156

This conclusion is in line with the ruling of the U.S. District Court of the District of Columbia in Center for International Environmental Law (CIEL) v. Office of the United States Trade Representative (237 F. Supp. 2d 17) which the ponencia discusses. However, CIEL was litigated under the Freedom of Information Act (FOIA) in the U.S. which requires that information/communication should be "inter-agency" for it to come within the protection of the deliberative process privilege. The FOIA does not have a counterpart in the Philippines. Instead, the above conclusion on the non-application of the deliberative process privilege to the subject JPEPA documents was reached by going back to the rationale and history of deliberative process privilege. In CIEL, nonprofit groups monitoring international trade and environmental issues brought a Freedom of Information Act (FOIA) suit against the Office of the United States Trade Representative, seeking information related to the negotiation of the U.S.-Chile Free Trade Agreement. Under the FOIA, deliberative and pre-decisional communications between and within agencies of the U.S. government are exempt from government duty to disclose information. Accordingly, the U.S. District Court of the District of Columbia held that communications between the U.S. and Chile, in the course of treaty negotiations, were not "inter-agency" within the meaning of FOIA exemption and thus should be disclosed to the nonprofit groups seeking access to them. The District Court explained its ruling, viz: For purposes of the inter-agency requirement, the Supreme Court has noted that the term "agency means each authority of the Government of the United States, 551(1), and includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ..., or any independent regulatory agency, 522(f)." Klamath Water Users, 532 U.S. at 9, 121 S.Ct. 1060. In general, this definition establishes that communications between agencies and outside parties are not protected under Exemption 5 (deliberative process privilege) See, e.g., Brownstein Zeidman & Schomer v. Dep't of the Air Force,781 F.Supp. 31, 35 (D.D.C.1991) ("While FOIA exemption 5 does protect intra-governmental deliberations, it does not cover negotiations between the government and outside parties."); see alsoMead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d at 257-58 (policy objectives of Exemption 5 not applicable to negotiations between agency and outside party). Chilean officials are not "enough like the agencys own personnel to justify calling their communications intra-agency. " Klamath Water Users, 532 U.S. at 12, 121 S.Ct. 1060. Nor did the documents that Chile submitted to USTR play "essentially the same part in [the] agency's process of deliberation as documents prepared by agency personnel might have done." It may be true, as defendants assert, that Chilean proposals and responses are essential to USTRs development of its own negotiating positions, but the role played by such documents is unmistakably different from the role of internally created documents; Chile shares its positions not in order to advise or educate USTR but in order to promote its own interests. See Def. Mem. at 22 (acknowledging that "Chile seeks to achieve its own objectives through the negotiations"). Nor does the fact that USTR "needs to understand what is important to Chile in order to develop its own positions" confer inter-agency status on these external documents. Def. Mem. at 21. ( 237 F. Supp. 2d 17, 25).

xxx

xxx

xxx

The decision in Ryan v. Dept of Justice, 617 F.2d 781, also is distinguishable. In Ryan, the court of appeals held that communications produced by Senators in response to an agency questionnaire regarding nominating procedures for judicial candidates fell within the narrow ambit of Exemption 5 (deliberative process privilege). The court characterized the Senators as "temporary consultants" who were "solicited to give advice only for specific projects." In the instant case, by contrast, the Chilean officials were not solicited for advice but rather negotiated with and treated as adversaries openly seeking to advance their own interests (237 F. Supp. 2d 17, 28). (emphasis supplied) The District Court of the District of Columbia distinguished the CIEL case from Fulbright & Jaworski v. Dept. of Treasury (545 F. Supp. 615 [D.D.C. 1982]), which also dealt with deliberative process privilege in relation to treaty negotiations (and which the ponencia likewise discussed), viz: In that case (Fulbright & Jaworski), one of very few to consider Exemption 5 (deliberative process privilege) in the context of foreign relations, individual notes taken by a United States negotiator during treaty discussions with France were protected from release under Exemption 5. The court held that "releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty" and consequently would risk great harm to the negotiations process Despite the superficial similarity of context - the "give-and-take" of treaty negotiations - the difference is that the negotiators notes at issue in Fulbright & Jaworski were clearly internal. The question of disclosure turned not on the inter-agency requirement of Exemption 5 but on whether or not the documents were part of the agencys predecisional deliberative process Judge Greens discussion of the harm that could result from disclosure therefore is irrelevant, since the documents at issue here are not inter-agency, and the Court does not reach the question of deliberative process. (237 F. Supp. 2d 17, 29) (emphasis supplied)
157

U.S. v. Reynolds, 345 U.S. 1 (1953); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984).
158

Ponencia.

159

Schoenborn, B., "Public Participation In Trade Negotiations: Open Agreements, Openly Arrived At?," 4 Minnesota Journal of Global Trade 103 (1995). "As delegates, elected representatives act on their constituents behalf in both foreign and domestic affairs. Interested private parties or organizations meet with their elected officials to discuss U.S. foreign trade policy when current issues pertain to their particular businesses. Typically, these occasions arise when issues are intermestic. Intermestic issues are those that effect both domestic and international policies. John W. Spanier & Eric M. Uslaner, American Foreign Policy Making and the Democratic Dilemmas 28 (1994). Intermestic issues, such as trade and energy issues, attract increased interest group representation, articulation, and influence. Often so many groups have interests in the outcome of policies and see the stakes as so high that these groups may control much of the policy process. Businesses, banks, agriculture and shipping interests, and labor organizations have a natural interest in trade, foreign investment, and tariff issues." Id. at Note 10 (citations omitted).

160

Id. "For most of U.S. history, international trade relationships were considered a relatively minor area of government activity. Generally, domestic issues are more important than foreign issues to Americans because the public considers those issues that most closely affect daily life to be most important to them. According to the Gallup Poll, since the late 1960s, Americans have consistently placed domestic issues far above foreign issues when considering the most important problem facing the country. Harold W. Stanley & Richard G. Niemi, Vital Statistics on American Politics 164 (4th ed. 1994). In most years after 1972, over 80% of those surveyed chose a domestic issue over a foreign one. While international trade most certainly affects life in the broad sense by creating new markets for goods and increasing the size of the economy, many Americans do not see it as a pressing issue, central to the way in which they live their lives." Id. at Note 11 (citations omitted).
161

Id., citing John Day Larkin, Trade Agreements: A Study in Democratic Methods 122-28 (1940). "For example, the Fordney-McCumber Act of 1922, though it delegated some congressional tariff-making powers to the President, still led to increased tariffs because the President found himself under too much congressional scrutiny to act in the best interests of the nation. Overall, when considering international trade agreements, most members of Congress may be divided into two groups: those who are protectionist at all times and give interest groups whatever they need to retain their tariffs; and those who do not, in principle, favor protectionism but feel they must not let their constituents down while a tariff bill is pending. As a result, allowing legislative input into the process of enacting trade agreements led only to increased tariffs with relatively few instances of tariff reductions. To avoid the evils of logrolling and partisan politics, Congress enacted legislation establishing general policies to be carried out by the administration. This action was the only way to lower tariffs "in the public interest without opening up a logrolling orgy." Id. at Note 16 (citations omitted).
162

Id. at 105-06.

163

19 U.S.C. 1351(a)(2) (1934) (current version at 19 U.S.C. 1351 [1988]) ("No proclamation shall be made increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the dutiable and free lists.").
164

Supra note 159 at 108. "From 1934 to 1939, the reciprocal trade agreements stimulated the domestic economy enormously. Walter La Feber, The American Age 356 (1989). U.S. exports rose by nearly one billion dollars and the U.S. favorable trade imbalance increased from one-half billion dollars to one billion dollars." Id. at Note 21.
165

Id. As codified in 19 U.S.C. 1354 (1934), the 1934 Act provided: Before any foreign trade agreement is concluded with any foreign government or instrumentality thereof under the provisions of Part III of this title, reasonable public notice of the intention to negotiate an agreement with such government or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the President, or to such agency as the President may designate, under such rules and regulations as the President may prescribe; and before concluding such agreement the President shall seek information and advice with respect thereto from the United States Tariff Commission, the Departments of State, Agriculture, and Commerce and from such other sources as he may deem appropriate. (current version at 19 U.S.C. 1354 [1988]).

166

167

Supra note 159 at 109, citing Larkin, J.D., Trade Agreements: A Study in Democratic Methods, 48-58 (1940).
168

Id. at 109, Note 24. Id. at 111-112.

169

170

Id. at 112. "According to the Economic Report of the President, 1975 was the last year the United States experienced a merchandise trade surplus (i.e., the value of exports was greater than the value of imports). Stanley & Niemi, Vital Statistics on American Politics 370 (4th ed. 1994). Moreover, in 1974 and 1975, America's gross domestic and national products declined as the nation suffered a recession. Id. at 417." Id. at Note 34.
171

"One issue that raised public awareness with regard to international trade was the oil embargo of 1973. The Organization of Petroleum Exporting Countries (OPEC) agreed on reduced production levels that increased world prices. This action was taken in retaliation for the U.S. support of Israel in the Arab-Israeli War. As a result of Americas dependence on Middle-Eastern oil, prices skyrocketed and long lines at the gas pump led to a wave of economic insecurity across America. See generally Ibrahim F.I. Shihata, The Case for the Arab Oil Embargo (1975) (discussing the history and politics surrounding the 1973 Arab oil embargo)." Id. at Note 36.
172

Trade Act of 1974, 19 U.S.C. 2101-2487 (Supp. V 1975) (current version at 19 U.S.C. 2101-2487 [1988 ). With regard to the Act of 1974, Professors Jackson and Davey have stated that "[i]n many ways, the struggle of Congress to regain some authority over international economic affairs was best manifested in the passage of the 1974 Trade Act ..." Jackson & Davey, Legal Problems of International Economic Relations 77 (2d ed. 1986).
173

19 U.S.C. 2155 (Supp. V 1975) (current version at 19 U.S.C. 2155 [1988 ).

174

The president must seek information and advice on negotiating objectives, bargaining positions, the operation of a trade agreement once entered into, and other matters arising in connection with the development, implementation, and administration of U.S. trade policy. 19 U.S.C. 2155(a).
175

19 U.S.C. 2155(a)-(c).

176

Additionally, 2155 of the 1974 Act created the Advisory Council for Trade Policy and Negotiations (ACTPN). That group was established as a permanent group to provide constant policy advice on matters such as negotiating objectives, bargaining positions, and the operation of trade agreements. 19 U.S.C. 2155.
177

Schoenborn, B., "Public Participation In Trade Negotiations: Open Agreements, Openly Arrived At?," 4 Minnesota Journal of Global Trade 103, 113-114 (1995).
178

Id. at 114-115. "As a result of a similar economic climate which, during the Great Depression, spurred the passage of the 1934 Act, the Reagan and Bush Administrations initiated the concept of reducing barriers to trade between Mexico, Canada, and the United States in order to increase the economies of all three nations involved. President Clinton supported and Congress passed the North American Free Trade Agreement in December 1993." Id. at Note 48.

179

Katt, Jr., W., "The New Paper Chase: Public Access to Trade Agreement Negotiating Documents," 106 Columbia Law Review 679, Note 2 (2006).
180

Schoenborn, B., "Public Participation In Trade Negotiations: Open Agreements, Openly Arrived At?," 4 Minnesota Journal of Global Trade 103, 116 (1995). "James O. Goldsborough notes that the public is becoming more engaged in U.S. foreign policy in the post-Cold War period. The idea is that foreign and domestic policy are becoming one, and that presidents no longer can treat foreign policy as their own privileged -- and private -- domain. James O. Goldsborough, Whose View? Despite Heightened Public Interest in Foreign Policy, the President Must Prevail, San Diego Union-Trib., Jun. 14, 1993, at B5. Goldsborough also states that the public will continue to demand a stronger voice in international affairs. In an era of free trade with Mexico, fair trade with Japan and environmental treaties that attempt to preserve the earth for future generations, foreign policy has achieved a domestic content it has not had before. There is nothing foreign about such issues. They have a direct impact on the quality of life of individuals." Id. at Note 50. Id. at 116. "(N)ow, for the first time, ordinary Americans are beginning to discover that national and international trade decisions have critical relevance to their daily lives. And as they increasingly seek a greater voice ... the trading game will never again be the same. Charles Lewis, The Treaty No One Could Read: How Lobbyists and Business Quietly Forged NAFTA, Wash. Post, June 27, 1993, at C1." Id. at Note 52.
181 182

Supra note 179.

183

Schoenborn, B., "Public Participation In Trade Negotiations: Open Agreements, Openly Arrived At?," 4 Minnesota Journal of Global Trade 103, 123 (1995).
184

Katt, Jr., W., "The New Paper Chase: Public Access to Trade Agreement Negotiating Documents," 106 Columbia Law Review (2006) 679, citing 19 U.S.C.A. 3802(b)(5).
185

Supra note 183 at 116. Id. at 122.

186

187

Gregory, M. "Environment, Sustainable Development, Public Participation and the NAFTA: A Retrospective," 7 Journal of Environmental Law and Litigation (1992), 99, 101.
188

Dannenmaier, E., "Trade, Democracy, and the FTAA: Public Access to the Process of Constructing a Free Trade Area of the Americas," 27 Fordham International Law Journal 1066, 1078 (2004) citing Second Summit of the Americas: Declaration of Principles and Plan of Action, Santiago, Chile, Apr. 19, 1998, reprinted in 37 I.L.M. 947, 950 (1998).
189

Id. at 1078 citing Second Summit of the Americas: Declaration of Principles and Plan of Action, Santiago, Chile, Apr. 19, 1998, reprinted in 37 I.L.M. 947, 951 (1998).
190

Id., citing Third Summit of the Americas: Declaration of Principles, Quebec City, Canada, Apr. 22, 2001, available at http://www.ftaa-alca.org/summits/quebec/declara_ e.asp.
191

Id., citing Third Summit: Declaration of Principles; Plan of Action at 14-15.

192

Id. Id. at 1082-83. Id. at 1096. Id. at 1116. Id. at 1115.

193

194

195

196

197

Katt, Jr., W., "The New Paper Chase: Public Access to Trade Agreement Negotiating Documents," 106 Columbia Law Review 679, 681 (2006).
198

Id. at 697, citing Robert P. Deyling, Judicial Deference and De Novo Review in Litigation over National Security Information under the Freedom of Information Act, 37 Vill. L. Rev. 67, 93 (1992).
199

N.Y. Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring) Supra note 197 at 681. 4 Records of the Constitutional Commission, p. 735. Id. at 752. Id. at 769. 1987 Phil. Const. Art. X, 3. 1987 Phil. Const., Art. VI, 32; Art. X, 3. 1987 Phil. Const., Art. VI, 32; Art. X, 3. 5 Records of the Constitutional Commission, p. 24. Id. at 26. Id. at 83. 1 Records of the Constitutional Commission, pp. 708-710, 757-758, 760. The Records of the Constitutional Commission state, viz: MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

200

201

202

203

204

205

206

207

208

209

210

211

MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction? MR. OPLE. Yes, subject to reasonable safeguards on the national interest. MR. SUAREZ. Thank you. Will the word "transactions" here also refer to treaties, executive agreements and service contracts particularly? MR. OPLE. I suppose that is subject to reasonable safeguards on national interest which include the national security. (emphasis supplied) (5 Records of the Constitutional Commission, p. 25)
212

1 Records of the Constitutional Commission, p. 709. G.R. No. 74930, February 13, 1989, 170 SCRA 256 (1989). Id. at 264-266.

213

214

215

Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (hereafter Bernas) (2003), p. 372.
216

G.R. No. L-72119, May 29, 1987, 150 SCRA 530. Id. at 541. Id. at 371. G.R. No. 140835, August 14, 2000, 337 SCRA 733. Id. at 746-747. 80 Phil. 383 (1948). Id.

217

218

219

220

221

222

223

Dissenting Opinion of Justice Reynato S. Puno in Tolentino v. COMELEC, et al., G.R. No. 148334, January 21, 2004, 420 SCRA 438, 489.
224

297 U.S. 233 (1936). Id. at 249-250, citing 2 Cooley, Const. Lim. 8th ed. p. 886. 425 U.S. 748 (1976).

225

226

227

Bunker, M., Splichal, S., Chamberlin, B., Perry, L., "Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology," 20 Florida State Law Review 543, 549 (1993).
228

425 U.S. 748, 765, Note 19 (1976).

229

Wilcox, W., "Access to Environmental Information in the United States and the United Kingdom," 23 Loyola of Los Angeles International & Comparative Law Review 121, 124-125 (2001).
230

410 U.S. 73 (1973). Id. at 80. 425 U.S. 352, 372 (1976). 437 U.S. 214 (1978). Id. at 242. EPA v. Mink, 410 U.S. 73 (1973). 5 U.S.C. 552 (b)(1). 438 U.S. 1 (1978).

231

232

233

234

235

236

237

238

Id. at 14, citing Pell v. Procunier, 417 U.S. 817 (1974) and Stewart, "Or of the Press," 26 Hastings LJ 631, 636 (1975).
239

Note, "The Rights of the Public and the Press to Gather Information," 87 Harvard Law Review 1505, 1512-13 (1974).
240

Coppel, P., Information Rights (2007), p. 2. Id., pp. 4-5, 8, 505; Freedom of Information Act 2000, 2(2)(b).

241

242

Export Credits Guarantee Department v. Friends of the Earth, [2008] EWHC 638 (Admin), citing Department for Education and Skills v. Information Commissioner and the Evening Standard (2007) UKIT EA 2006 0006 at [20].
243

Coppel, P., supra note 240 at 550. Freedom of Information Act 2000, 27(1)(a). Id. at 27(2). Freedom of Information Act 1982, 11(2). Id. at 33.

244

245

246

247

248

Coppel, P., supra note 240 at 67. Official Information Act 1982, 6(b) and 27(1); Coppel, supra note 240, pp. 68-69. 1987 Phil. Const. Art. III, 7. G.R. No. L-72119, May 29, 1987, 150 SCRA 530.

249

250

251

252

Id. Analogously, in the U.S., the Freedom of Information Act (FOIA) was enacted to facilitate public access to government documents. The statute was designed "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Consistent with this purpose and the plain language of the FOIA, the burden is on the government agency to justify the withholding of any requested documents. (references omitted) U.S. Department of State v. Ray, et al., 502 U.S. 164, 173 (1991).
253

G.R. No. L-72119, May 29, 1987, 150 SCRA 530.

254

See Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530, 541; See also Comment, pp. 15-21.
255

For example, the U.S. FOIA provides for the following sources of exceptions from the duty to disclose information, viz: (b) This section (referring to the FOIA) does not apply to matters that are-(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; xxx xxx xxx

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld (5 U.S.C. 552 [b][1] and [3])
256

Bernas, pp. 372-73.

257

Issued by President Gloria Macapagal-Arroyo on September 28, 2005. E.O. 464 provides in relevant part, viz: Section 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

Section 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002). (b) Who are covered. The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President.

Section 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.
258

Comment, pp. 18-20. The Court ruled in Senate v. Ermita, viz: E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern.

259

260

G.R. No. 95367, May 23, 1995, 244 SCRA 286, citing 10 Anno., Government Privilege Against Disclosure of Official Information, 95 L. Ed. 3-4 and 7, pp. 427-29, 434.
261

G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006). The right to information was involved in that case only "(t)o the extent that investigations in aid of legislation are generally conducted in public;" thus, "any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern."
262

PMPF v. Manglapus, G.R. No. 84642, September 13, 1988, pp. 5-6. PMPF v. Manglapus, G.R. No. 84642, September 13, 1988, pp. 3-4. 5 Records of the Constitutional Commission, p. 25.

263

264

265

With respect to the disclosure of the subject JPEPA documents to the House Special Committee on Globalization conducting an inquiry in aid of legislation, the "reasonable safeguard(s) for the sake of national interest" is that the said documents are released only after employing a "balancing of interests test" as will subsequently be shown.
266

Freedom of Information Act 2000, 27(1)(a). Id. at 27(2). 418 U.S. 683 (1974). 498 F.2d 725, 162 U.S. App. D.C. 183. 121 F.3d 729, 326 App. D.C. 276. Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000, 322 SCRA 160.

267

268

269

270

271

272

Cabansag v. Fernandez, 102 Phil. 152; Gonzales v. COMELEC, 137 Phil. 489 (1969); Bradenburg v. Ohio, 395 U.S. 444 (1969).

273

Estrada v. Escitor, A.M. No. P-02-1651, August 4, 2003, 408 SCRA 1. 1987 Phil. Const. Art. III, 7 provides, viz: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

274

275

Valmonte, supra at 264.

276

Similarly, as afore-discussed, the statutes on the right of access to information of the United States, United Kingdom, and Australia, among others, do not require a demonstration of need or reason to access information.
277

Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530, 541; 1 Records of the Constitutional Commission, p. 709.
278

G.R. No. 74930, February 13, 1989, 170 SCRA 256, 266. 433 Phil. 506 (2002). Ponencia. 418 U.S. 683, 712 at Note 19.

279

280

281

282

Similarly, the application of the U.S. Freedom of Information Act (FOIA) can yield different results between a request for information by the public and by the legislature. The FOIA requires executive agencies to make documents available to the public, but sets forth nine exemptions from the Act, including matters that are specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such executive order These exemptions justify denial to the public of information from executive agencies, but they do not apply to Congress. FOIA specifically provides that these exemptions do not constitute authority to withhold information from Congress.
283

United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 320 (1936).

284

TSN, Hearing of the House of Representatives Special Committee on Globalization and WTO, 12 October 2005, p. 11.
285

See Salazar, M., "JPEPA Concerns," Manila Bulletin, 2 June 2008; Aning, J., "Santiago slammed for "conditional" stance on JPEPA, Philippine Daily Inquirer (www.inq7.net), 26 April 2008.
286

Memorandum of Justice Florentino P. Feliciano on the Constitutional Law Aspects of the Japan-Philippines Economic Partnership Agreement (JPEPA), Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 7.

287

1987 Phil. Const. Art. XII, 2 provides, viz: Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

288

1987 Phil. Const. Art. XII, 11 provides, viz: Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

289

1987 Phil. Const. Art. XII, 14 provides in relevant part, viz:

 The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.
290

1987 Phil. Const. Art. XIV, 4(2) provides, viz: Section 4. (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

291

Supra note 286 at 7-8. Id. at 8. 1987 Phil. Const. Art. XVI, 11 (1) provides, viz: Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, whollyowned and managed by such citizens.

292

293

294

1987 Phil. Const. Art. XVI, 11 (1) provides, viz: Sec. 11. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.

295

Supra note 286 at 8-9.

296

Dean Merlin Magallona, TSN, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007; see also Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 4 October 2007, p. 8, citing Dean Merlin Magallonas August 14 Senate lecture on the Constitutional and Legal Implications of the JPEPA.

297

Id. Some of these goods provided in Annex 1 of the JPEPA are the following: Heading No. 2620.60 00

298

Description Ash and residues (other than from the manufacture of iron or steel) containing arsenic, mercury, thallium or their mixtures, of a kind used for the extraction of arsenic or those metals or for the manufacture of their chemical compounds Ash and residues from the incineration of municipal waste Waste pharmaceuticals Wastes of metal pickling liquors, hydraulic fluids, brake fluids and antifreeze fluids

2621.1000 3006.80 3825.5000

299

Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 4 October 2007, p. 3.
300

Position Paper of Magkaisa Junk JPEPA, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 4 October 2007, citing provisions of the working draft text of the JPEPA as of 21 April 2003 (accessed through the Philippine Institute for Development Studies, the government research institution tasked to study the JPEPA) and Article 29 of the JPEPA signed by President Gloria MacapagalArroyo.
301

Annex 7, 2B of the JPEPA provides, viz: 2B: Schedule of the Philippines 1. Sector: Fisheries Sub-Sector: Utilization of Marine Resource Industry Classification: Type of National Treatment (Article 89) Reservation: Measures: The Constitution of the Republic of the Philippines, Article XII Description: 1. No foreign participation is allowed for small-scale utilization of marine resources in archipelagic waters, territorial sea and exclusive economic zones.

2. For deep-sea fishing, corporations, associations or partnerships with maximum 40 percent foreign equity can enter into coproduction, joint venture or production sharing agreement with the Philippine Government. (emphasis supplied)
302

Position Paper of Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya), Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
303

Id.

304

Position Paper of Magkaisa Junk JPEPA Coalition, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 14 September 2007, p. 14. 1987 Phil. Const. Art. XII, 2 provides in relevant part, viz: The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
305

Position Paper of Task Force Food Sovereignty and the Magkaisa Junk JPEPA Coalition, Hearing of the Senate Joint Committee on Foreign Relations and Committee on Trade and Commerce, 8 October 2007, p. 4.
306

Id.

307

This approach is similar to the observation in the Separate Opinion of Justice Tinga that it can be deduced from an 18 July 1997 decision of the International Criminal Tribunal for the former Yugoslavia that the "invocation of states secrets cannot be taken at face value but must be assessed by the courts."
308

The Vienna Convention on the Law of Treaties provides in Article 32, viz: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 (General rule of interpretation), or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

309

Katt, Jr., W., "The New Paper Chase: Public Access to Trade Agreement Negotiating Documents," 106 Columbia Law Review 679, 693 (2006).
310

G.R. No. 169777, April 20, 2006, 488 SCRA 1 (2006). Id. at 51.

311

312

In the words of Thomas Jefferson, "if a nation expects to be ignorant and free in a state of civilization, it expects what never was and will never be." Letter from Thomas Jefferson to Colonel Charles Yancey (Jan. 6, 1816), in 10 The Writings of Thomas Jefferson 4 (Paul L. Ford ed., 1899), cited in Library of Congress, Respectfully Quoted 97 (Suzy Platt ed., 1989).

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SEPARATE DISSENTING OPINION AZCUNA, J.: I fully agree with the Dissenting Opinion of Chief Justice Reynato S. Puno. The ponencia regrettably assumes that the power of Congress, when it investigates, is either in aid of legislation or by way of oversight. What appears to have been forgotten is an equally important and fundamental power and duty of Congress and that is its informing function by way of investigating for the purpose of enlightening the electorate. Arthur M. Schlesinger, in THE IMPERIAL PRESIDENCY, aptly quotes Wilson on CONGRESSIONAL GOVERNMENT on this power: Congresss "only whip," Wilson said, "is investigation," and that "the chief purpose of investigation, even more than the direction of affairs, was the enlightenment of the electorate. The inquisitiveness of such bodies as Congress is the best conceivable source of information. The informing function of Congress should be preferred even to its legislative function." For "the only really self-governing people is that people which discusses and interrogates its administration."1 This is all the more compelling in our polity because our Constitution is replete and suffused with provisions on transparency, accountability and the right of the people to know the facts of governance, as pointed out by the Chief Justice. Neither is the Philippines the only country that has done this. Only last year, 2007, Mexico amended its Constitution to raise to the level of a fundamental right the publics right to know the truth, thereby providing that: "All information in the possession of any federal, state and municipal authority, entity, body or organization is publicxxxx." The amendment reads: The Amendment to Article 6 of the Constitution The Permanent Commission of the Honorable Congress, in full use of the power bestowed on it by Article 135 of the Constitution, and after approval by both the Chamber of Deputies and the Senate of Mexico, as well as the legislatures, decrees: A second paragraph with seven subsections is hereby added to Article 6 of the Mexican Constitution. Single Article. A second paragraph with seven subsections is added to Article 6 of the Mexican Constitution, which will now read as follows: Article 6

For purposes of the exercise of the right to access to information, the federal government, the states of the Federal District, each in their respective jurisdictions, will comply with the following principles and bases: I. All information in the possession of any federal, state and municipal authority, entity, body and organism [organs] is public and may only be temporarily withheld in the public interest in accordance with legislation. In interpreting this right, the principle of the maximum publicness must prevail. II. Information referring to individuals private lives and personal data shall be protected as stipulated in and with the exceptions established by law. III. Without having to show any involvement in the topic or justify its use, all individuals will have access, free of charge, to public information, his/her personal data, or to the rectification of said data. IV. Mechanisms for access and expeditious review procedures shall be established. These procedures will be substantiated before specialized, impartial bodies with operational, managerial and decision-making autonomy. V. Entities herein mandated shall preserve their documents in updated administrative archives and shall publish in the available electronic media complete, updated information about their management indicators and the exercise of public resources. VI. Legislation will determine the manner in which those mandated to comply will make public the information about public resources given to individuals or entities. VII. Incompliance [Noncompliance] with the stipulations regarding access to public information will be sanctioned accordingly to the law. TRANSITORY ARTICLES First. The present Decree shall go into effect the day after its publication in the Official Federal Gazette. Second. The federal government, the states and the Federal District, in their respective jurisdictions, shall issue legislation about access to public information and transparency, or make the necessary changes no later than one year after this Decree goes into effect. Third. The federal government, the states and the Federal District must establish electronic systems so that any person can use from a distance the mechanisms for access to information and the review procedures mentioned in this Decree. Said systems must be functioning no later than two years after the Decree goes into effect. State laws shall establish whatever is needed for municipalities with more than 60,000 inhabitants and the territorial sub-divisions of the Federal District to have their own electronic systems within that same period of time. [Emphasis supplied.]2 Transparency is in fact the prevalent trend and non-disclosure is the diminishing exception. The reason lies in the recognition under international law of the fundamental human right of a citizen to take part in governance, as set forth in the 1948 United Nations Universal Declaration of Human Rights, a right that cannot be realized without access to information.

And even in the United States from where the privilege originated no President has claimed a general prerogative to withhold but rather the Executive has claimed particular exceptions to the general rule of unlimited executive disclosure: Conceding the idea of Congress as the grand inquest of the nation, Presidents only claimed particular exceptions to the general rule of unlimited executive disclosures Washington, the protector of the exclusive constitutional jurisdiction of one house of Congress against invasion by the other house; Jefferson, the protector of presidential relationship within the executive branch and the defense of that branch against congressional harassment; Taylor, the protection of ongoing investigation and litigation; Polk, the protection of state secrets in intelligence and negotiation. While exceptions might accumulate, no President had claimed a general and absolute prerogative to withhold.3 The President, therefore, has the burden to show that a particular exception obtains in every case where the privilege is claimed. This has not been done in the present case. All that the Senate is asking for are copies of the starting offers of the Philippines and of Japan. What is the deep secret in those papers? If the final product is and has been disclosed, why cannot the starting offers be revealed? How can anyone, the Senate or the electorate included, fathom to use the favorite word of a counsel the end product if one is not told the starting positions? Furthermore, Executive Secretary Ermita did not really invoke the privilege. All he said was that, at the time of the request, negotiations were on-going, so that it was difficult to provide all the papers relative to the proposed Treaty (which was then the request of the Senate). He did not say it was privileged or secret or confidential but that it wasdifficult at the time to comply with the request as the Executive understandably had its hands full in the midst of the negotiations. Now the negotiations are over. The proposed treaty has been signed and submitted to the Senate for ratification. There is no more difficulty in complying with the now reduced request of giving copies of the starting offers of the Philippines and of Japan. Since the privilege is an exception to the rule, it must be properly, seasonably and clearly invoked. Otherwise, it cannot be applied and sustained. Finally, as Ex parte Milligan4 sums it: A country preserved at the sacrifice of all the cardinal principles of liberty is not worth the cost of preserving.5 I vote to compel disclosure of the requested documents. ADOLFO S. AZCUNA Associate Justice

Footnotes
1

Schlesinger, 10, 76-77 quoting: Wilson, Congressional Government, 278, 279, 299, 301, 303. (Emphasis supplied.)

Ricardo Becerra, Mexico: Transparency and the Constitution, Voices of Mexico, Issue 80, Sept.-Dec. 2007, pp. 11-14.
3

Op cit., note 1 at 83. 4 Wall. 120, 126 (1866). See, A.M. Schlesinger, Jr., THE IMPERIAL PRESIDENCY, 1973, p. 70.

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CONCURRING OPINION CARPIO, J.: I concur with the ponencia of Justice Conchita Carpio Morales on the following grounds: 1. Offers and counter-offers between States negotiating a treaty are expected by the negotiating States to remain confidential during the negotiations prior to the signing of the treaty. There is no dispute on this. 2. After the signing of the treaty, the public disclosure of such offers and counter-offers depends on the consent of both negotiating States. A State may wish to keep its offers and counter-offers confidential even after the signing of the treaty because it plans to negotiate similar treaties with other countries and it does not want its negotiating positions known beforehand by such other countries. The offers and counter-offers of a negotiating State usually include references to or discussions of the offers and counter-offers of the other negotiating State. Hence, a negotiating State cannot decide alone to disclose publicly its own offers and counter-offers if they refer to or discuss the offers and counter-offers of the other negotiating State. 3. If the Philippines does not respect the confidentiality of the offers and counter-offers of its negotiating partner State, then other countries will be reluctant to negotiate in a candid and frank manner with the Philippines. Negotiators of other countries will know that Philippine negotiators can be forced to disclose publicly offers and counter-offers that their countries want to remain confidential even after the treaty signing. Thus, negotiators of such countries will simply repeat to Philippine negotiators offers and counter-offers that they can disclose publicly to their own citizens, which offers and counter-offers are usually more favorable to their countries. This denies to Philippine negotiators the opportunity to hear, and explore, other more balanced offers or counter-offers from negotiators of such countries. A writer on diplomatic secrets puts it this way: x x x Disclosure of negotiating strategy and goals impairs a party's ability to negotiate the most favorable terms, because a negotiating party that discloses its minimum demands insures that it will get nothing more than the minimum. Moreover, those involved in the practice of negotiations appear to be in agreement that publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved

by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to play to the gallery . . . . In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in return for peace.1 4. In the present case, at least one negotiating State the Philippines does not want to disclose publicly the offers and counter-offers, including its own. The Philippines is expected to enter into similar treaties with other countries. The Court cannot force the Executive branch to telegraph to other countries its possible offers and counter-offers that comprise our negotiating strategy. That will put Philippine negotiators at a great disadvantage to the prejudice of national interest. Offers and counter-offers in treaty negotiations are part of diplomatic secrets protected under the doctrine of executive privilege. Thus, in United States v. Curtiss-Wright,2 the leading case in American jurisprudence on this issue, the U.S. Supreme Court, quoting with approval a letter of President George Washington, held: x x x Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said: The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. (Emphasis supplied) 5. The negotiation of treaties is different from the awarding of contracts by government agencies. In diplomatic negotiations, there is a traditional expectation that the offers and counter-offers of the negotiating States will remain confidential even after the treaty signing. States have honored this tradition and those that do not will suffer the consequences. There is no such expectation of keeping confidential the internal deliberations of government agencies after the awarding of contracts. 6. However, in the ratification of a treaty, the Senate has the right to see in executive session, the offers and counter-offers made in the treaty negotiations even in the absence of consent from our treaty partner State. Otherwise, the Senate cannot examine fully the wisdom of the treaty. In the present case, however, the Senate is not a party. Accordingly, I vote to DISMISS the petition. ANTONIO T. CARPIO Associate Justice

Footnotes
1

Benjamin S. DuVal, The Occasions of Secrecy, University of Pittsburgh Law Review, Spring 1986.
2

299 U.S. 304 (1936).

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SEPARATE OPINION TINGA, J.: The dissent of our eminent Chief Justice raises several worthy points. Had the present question involved the legislative consideration of a domestic enactment, rather than a bilateral treaty submitted for ratification by the Senate, I would have no qualms in voting to grant the petition. However, my vote to dismiss the petition, joining in the result of the ponencia of the esteemed Justice Morales, is due to my inability to blithely disregard the diplomatic and international ramifications should this Court establish a rule that materials relevant to treaty negotiations are demandable as a matter of right. The long-standing tradition of respecting the confidentiality of diplomatic negotiations is embodied in the rule according executive privilege to diplomatic secrets. The ponente engages in a thorough and enlightening discussion on the importance and vitality of the diplomatic secrets privilege, and points out that such privilege, which is a specie of executive privilege, serves to balance the constitutional right to information invoked in this case. If I may add, in response to the Dissenting Opinion which treats the deliberative process privilege as "a distinct kind of executive privilege" from the "diplomatic secrets privilege", notwithstanding the distinction, both deliberative process privilege and diplomatic secrets privilege should be jointly considered if the question at hand, as in this case, involves such diplomatic correspondences related to treaty negotiations. The diplomatic character of such correspondences places them squarely within the diplomatic secrets privilege, while the fact that the ratification of such treaty will bestow on it the force and effect of law in the Philippines also places them within the ambit of the deliberate process privilege. Thus, it would not be enough to consider the question of privilege from only one of those two perspectives, as both species of executive privilege should be ultimately weighed and applied in conjunction with each other. In ascertaining the balance between executive privilege and the constitutional right to information in this case, I likewise consider it material to consider the implications had the Court established a precedent that would classify such documents relating to treaty negotiations as part of the public record since it is encompassed within the constitutional right to information. The Dissenting Opinion is unfortunately unable to ultimately convince that establishing such a general rule would not set the Philippines so far apart from the general practice of the community of nations. For if indeed the Philippines would become unique among the governments of the world in establishing that these correspondences related to treaty negotiations are part of the public record, I fear that such a doctrine would impair the ability of the Philippines to negotiate treaties or agreements with foreign

countries. The Philippines would become isolated from the community of nations, and I need not expound on the negative and destabilizing implications of such a consequence. It should be expected that national governments, including our own, would insist on maintaining the presumptive secrecy of all documents and correspondences relating to treaty negotiations. Such approach would be maintained upon no matter how innocuous, honest or above-board the privileged information actually is, since an acknowledgment that such information belongs to the public record would diminish a nations bargaining power in the negotiation of treaties. This truth may be borne moreso out of realpolitik, rather then the prevalence of a pristine legal principle, yet it is a political reality which this Court has to contend with since it redounds to the ultimate wellbeing of the Philippines as a sovereign nation. On the premise that at least a significant majority of the most relevant players in the international scene adhere to the basic confidentiality of treaty negotiations no matter the domestic implications of such confidentiality, then it can only be expected that such nations will hesitate, if not refuse outright, to negotiate treaties with countries which do not respect that same rule. The Dissenting Opinion does strive to establish that in certain countries such as the United States, the United Kingdom, Australia and New Zealand, there is established a statutory right to information that allows those states citizens to demand the release of documents pertinent to public affairs. However, even the dissent acknowledges that in the United Kingdom for example, "confidential information obtained from a State other than the United Kingdom" or information that would be likely to prejudice relations between the United Kingdom and other countries are exempt from its own Freedom of Information Act of 2000. It is impossible to conclude, using the examples of those countries, that there is a general presumptive right to access documents relevant to diplomatic negotiations. It would be a different matter if the petitioners or the dissent were able to demonstrate that a significant number of nations have adopted a paradigm that incorporates their treaty negotiations into the public record out of recognition of the vital right to information, transparency, good governance, or whatever national interest revelation would promote; or that there is an emerging trend in international law that recognizes that treaty negotiations are not privileged in character, or even if so, that the privilege is of such weak character that it may easily be overcome. If either circumstance was established, it would be easier to adopt the position of the dissent, which admirably attempts to infuse full vitality into the constitutional rights of the people, as it would assure that such constitutional affirmation would not come at the expense of the countrys isolation from the community of nations. Unfortunately, neither the Dissenting Opinion nor the petitioners herein, have attempted to engage such perspective. A cursory inquiry into foreign jurisprudence and international law does not reveal that either of the two trends exist a the moment. In the United Kingdom, the concept of State interest immunity (formerly known as "Crown Privilege") guarantees that information, the disclosure of which would be prejudicial to the interests of the State, may not be disclosed. In the Corfu Channel Case,1 the International Court of Justice affirmed the United Kingdoms refusal to turn over certain documents relevant to its dispute with Albania on the ground of national security. In Australia, the Attorney Generals certification that information may not be disclosed for the reason that it would prejudice the security, defense or international relations of Australia is authoritative and must be adhered to by the court.2 According to commentaries on the law on evidence in Pakistan, "if the privilege is claimed on the ground that the document relates to the affairs of the State which means maters of public nature in which a State is concerned and disclosure of which will be prejudicial to public interest or endangers national defense or is detrimental to good diplomatic relations then the general rule [of judicial

review] ceases to apply and the Court shall not inspect the document or show it to the opposite party unless the validity of the privilege claimed is determined."3 The International Criminal Tribunal for the former Yugoslavia, in a decision dated 18 July 1997, did recognize an international trend that in cases where national security or state secrets privilege is invoked, the courts may nonetheless assess the validity of the claim, thus requiring the disclosure of such documents to the courts or its designates.4 Nonetheless, assuming that such a ruling is indicative of an emerging norm in international law, it only establishes that the invocation of state secrets cannot be taken at face value but must be assessed ;by the courts. The Dissenting Opinion implicitly goes further and establishes that documents involved in diplomatic negotiations relating to treaty agreements should form part of the public record as a consequence of the constitutional right to information. I would have been more conformable to acknowledge such a doctrine if it is supported by a similar trend in foreign jurisprudence or international law. Where the contracting nations to a treaty share a common concern for the basic confidentiality of treaty negotiations it is understandable that such concern may evolve unto a firm norm of conduct between them for as long as no conflict between them in regard to the treaty emerges. Thus, with respect to the subject treaty the Government of the Philippines should expectedly heed Japans normal interest in preserving the confidentiality of the treaty negotiations and conduct itself accordingly in the same manner that our Government expects the Japanese Government to observe the protocol of confidentiality. Even if a case arises between the contracting nations concerning the treaty it does not necessarily follow that the confidentiality of the treaty negotiations may be dispensed with and looked into by the tribunal hearing the case, except for the purposes mentioned in Article 32 of the Vienna Convention of the Law of Treaties. The Article provides: Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leaves to a result which is manifestly absurd or unreasonable. The aforequoted "preparatory work" or travaux preparatiores may be used either to confirm the meaning of the treaty or as an aid to interpretation where, following the application of Article 32, the meaning is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.5 The article may be limited in design as a rule in the interpretation of treaties. Moreover, it is less clear what exactly classifies documents or correspondences as "preparatory work." Should such preparatory work have been cleared for disclosure by the negotiating countries? In 1995, the International Court of Justice, in Qatar v. Bahrain,6 dealt with Bahrains claim that following Article 32, the ICJ should adopt its theory concerning a territorial dispute based on the text of a documents headed "Minutes" signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia. While the ICJ ultimately rejected Bahrains contention on the ground that such minutes could not provide conclusive supplementary elements for the interpretation of the text adopted, it is useful to dwell on the fact that such a document classified as

"preparatory work" was, at the very least, expressly approved by the negotiating parties through their Foreign Ministers. In the case at bar, it appears that the documents which the petitioners are particularly interested in their disclosure are the various drafts of the JPEPA. It is not clear whether such drafts were ever signed by the Philippine and Japanese governments, or incorporated in minutes or similar documents signed by the two governments. Even assuming that they were signed but without any intention to release them for public documentation, would such signatures already classify the minutes as part of "preparatory work" which, following the Vienna Convention, provides supplementary means of interpretation and should logically be within the realm of public disclosure? These are manifestly difficult questions which unfortunately, the petitioners and the Dissenting Opinion did not adequately address. Finally, I wish to add that if the petitioner in this case is the Senate of the Philippines, and that it seeks the requested documents in the process of deliberating on the ratification of the treaty, I will vote for the disclosure of such documents, subject to mechanisms such as in camera inspection or executive sessions that would have accorded due regard to executive privilege. However, the reason behind such a position will be based not on the right to information, but rather, on the right of the Senate to fully exercise its constituent function of ratifying treaties. DANTE O. TINGA Associate Justice

Footnotes
1

United Kingdom v. Albania, 1949 I.C.J. 4 (Apr. 9).

See paragraphs 144 & 145, DECISION ON THE OBJECTION OF THE REPUBLIC OF CROATIA TO THE ISSUANCE OF SUBPOENAE DUCES TECUM, International Criminal Tribunal for the former Yugoslavia (18 July 1997).
3

See id. See note 2. International Law, ed. By Malcolm D. Evans, p. 188.

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, ICJ Reports 995.