Republic of the Philippines

Supreme Court
Manila

EN BANC

ISABELITA C. VINUYA, VICTORIA G.R. No. 162230

C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA, Present:
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA PUNO, C. J.,
ALONZO, RUFINA P. MALLARI, CARPIO,
ROSARIO M. ALARCON, RUFINA C. CORONA,
GULAPA, ZOILA B. MANALUS, CARPIO MORALES,
CORAZON C. CALMA, MARTA A. VELASCO, JR.,
GULAPA, TEODORA M. HERNANDEZ, NACHURA,
FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,
PAZ B. CULALA, ESPERANZA BRION,
MANAPOL, JUANITA M. BRIONES, PERALTA,
VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,
ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,
R. PUNZALAN, JANUARIA G. GARCIA, ABAD,
PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,
CULALA, PILAR Q. GALANG, PEREZ, and
ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,

- versus -

THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of
 plaintiffs for a future peace. History has vindicated the wisdom of that bargain.
And while full compensation for plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners and countless other survivors of
the war, the immeasurable bounty of life for themselves and their posterity in a
free society and in a more peaceful world services the debt.[1]

There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would be strange indeed if the
courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than 60
years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-

profit organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering.[2]
 Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war
crimes committed against them; and (b) compel the respondents to espouse their claims
for official apology and other forms of reparations against Japan before the International
Court of Justice (ICJ) and other international tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,[3] sexual slavery,[4] and torture.[5] They allege that
the prohibition against these international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan, the Philippine government is in breach
of its legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine governments acceptance of the apologies made by
Japan as well as funds from the Asian Womens Fund (AWF) were contrary to
international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.[6]
 Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for
the damage and suffering caused by it during the war. Nevertheless
it is also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete
reparation for all such damage and suffering and at the present time
meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied

Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through
the atonement money paid by the Asian Womens Fund.
Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and
began a barbaric campaign of terror known as the Rape of Nanking, which included the
rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young
girls, pregnant mothers, and elderly women.[9]

In reaction to international outcry over the incident, the Japanese government

sought ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment. [11] Comfort
stations would also prevent the spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.[12]
 Daily life as a comfort woman was unmitigated misery.[13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were forced to
live, sleep, and have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for
sexual relations with each soldier were 30-minute increments of unimaginable horror for
the women.[15] Disease was rampant.[16] Military doctors regularly examined the women,
but these checks were carried out to prevent the spread of venereal diseases; little notice
was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.

Fewer than 30% of the women survived the war.[17] Their agony continued in having to
suffer with the residual physical, psychological, and emotional scars from their former
lives. Some returned home and were ostracized by their families. Some committed
suicide. Others, out of shame, never returned home.[18]

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Womens International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation of
the AWF.[19]

Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case.[20] Other suits followed,[21] but the Japanese
government has, thus far, successfully caused the dismissal of every case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims

of the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia[23] "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during World War II," in violation
of "both positive and customary international law." The case was filed pursuant to the
Alien Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue the Japanese
government in a US federal district court.[25] On October 4, 2001, the district court
dismissed the lawsuit due to lack of jurisdiction over Japan, stating that [t]here is no
question that this court is not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.

The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.[27] On remand, the Court of Appeals affirmed its prior decision, noting
that much as we may feel for the plight of the appellants, the courts of the US simply are
not authorized to hear their case.[28] The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery
by Japan (KCWS), submitted a petition to the UN Human Rights Commission
(UNHRC), asking for assistance in investigating crimes committed by Japan against
Korean women and seeking reparations for former comfort women. [29] The UNHRC
placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's
special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex slaves for the imperial army, and
made the following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese
Imperial Army during the Second World War was a violation of its
obligations under international law and accept legal responsibility for
that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery

according to principles outlined by the Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation
 for victims of grave violations of human rights and fundamental
freedoms. A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims are of a very
advanced age;

(c) Make a full disclosure of documents and materials in its possession with
regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese
military sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to

reflect historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the

recruitment and institutionalization of comfort stations during the
Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of

Discrimination and Protection of Minorities, also presented a report to the Sub-
Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape,
Sexual Slavery and Slavery-like Practices During Armed Conflict. The report included an
appendix entitled An Analysis of the Legal Liability of the Government of Japan for
'Comfort Women Stations' established during the Second World War,[30] which contained
the following findings:

68. The present report concludes that the Japanese Government remains liable
for grave violations of human rights and humanitarian law, violations that
amount in their totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including arguments that seek to
attack the underlying humanitarian law prohibition of enslavement and rape,
remain as unpersuasive today as they were when they were first raised before
the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has already settled all claims from
the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to
the failure until very recently of the Japanese Government to admit the extent
of the Japanese militarys direct involvement in the establishment and
 maintenance of these rape centres. The Japanese Governments silence on this
point during the period in which peace and reparations agreements
between Japan and other Asian Governments were being negotiated following
the end of the war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in these cases.

69. The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of women
continue to be undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second World War has added
to the level of impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone for the rape
and enslavement of over 200,000 women and girls who were brutalized in
comfort stations during the Second World War. However, anything less than
full and unqualified acceptance by the Government of Japan of legal liability
and the consequences that flow from such liability is wholly inadequate. It
must now fall to the Government of Japan to take the necessary final steps to
provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes

Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human rights organizations, supported by
an international coalition of non-governmental organizations.[31] First proposed in 1998,
the WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military sexual
violence, in particular the enslavement of comfort women, to bring those responsible for
it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against
women.

After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty
of crimes against humanity for the rape and sexual slavery of women. [32] It bears
stressing, however, that although the tribunal included prosecutors, witnesses, and judges,
its judgment was not legally binding since the tribunal itself was organized by private
citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six
co-sponsor representatives, introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,[33] and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan
(1) should formally acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its Imperial Armed
Forces' coercion of young women into sexual slavery, known to the world as
comfort women, during its colonial and wartime occupation of Asia and the
Pacific Islands from the 1930s through the duration of World War II; (2) would
help to resolve recurring questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to make such an apology as a
public statement in his official capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and trafficking of the comfort women
for the Japanese Imperial Army never occurred; and (4) should educate current
and future generations about this horrible crime while following the
recommendations of the international community with respect to the comfort
women.[34]

In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121. [35] Entitled, Justice for
Comfort Women, the resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution also
stressed the urgency with which Japan should act on these issues, stating: the right of
individuals to claim reparations against the government should be expressly recognized
in national law, and cases for reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into account the age of the survivors.

The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government to issue
a formal apology, to admit that its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to restore references in Japanese textbooks
to its war crimes.[36] The Dutch parliament's resolution calls for the Japanese government
to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdoms Parliament also

produced a report in November, 2008 entitled, "Global Security: Japan and Korea"
which concluded that Japan should acknowledge the pain caused by the issue of comfort
women in order to ensure cooperation between Japan and Korea.

Statements of Remorse made by

representatives of the Japanese government

Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a
result of that study.

As a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great number
of comfort women. Comfort stations were operated in response to the request
of the military authorities of the day. The then Japanese military was, directly
or indirectly, involved in the establishment and management of the comfort
stations and the transfer of comfort women. The recruitment of the comfort
women was conducted mainly by private recruiters who acted in response to
the request of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing coercion,
etc., and that, at times, administrative/military personnel directly took part in
the recruitments. They lived in misery at comfort stations under a coercive
atmosphere.

As to the origin of those comfort women who were transferred to the war
areas, excluding those from Japan, those from
the Korean Peninsula accounted for a large part. The Korean Peninsula was
 under Japanese rule in those days, and their recruitment, transfer, control, etc.,
were conducted generally against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities
of the day, that severely injured the honor and dignity of many women. The
Government of Japan would like to take this opportunity once again to extend
its sincere apologies and remorse to all those, irrespective of place of origin,
who suffered immeasurable pain and incurable physical and psychological
wounds as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider

seriously, while listening to the views of learned circles, how best we can
express this sentiment.

We shall face squarely the historical facts as described above instead of

evading them, and take them to heart as lessons of history. We hereby
reiterated our firm determination never to repeat the same mistake by forever
engraving such issues in our memories through the study and teaching of
history.

As actions have been brought to court in Japan and interests have been shown
in this issue outside Japan, the Government of Japan shall continue to pay full
attention to this matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor
and dignity of many women, I would like to take this opportunity once again
to express my profound and sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a large
number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies

and remorse to all the women who endured immeasurable and painful
experiences and suffered incurable physical and psychological wounds as
comfort women.
 I believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past history and
accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing
that Japan carried out such acts in the past and inflicted suffering on the people
of other countries, especially in Asia, the Members of this House hereby
express deep remorse. (Resolution of the House of Representatives adopted on
June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as
well, and to the press. I have been consistent. I will stand by the Kono
Statement. This is our consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and incurable
psychological wounds as comfort women. Former Prime Ministers, including
Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an
Interview by NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it

is as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt
from Remarks by Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered

hardships, and I have expressed my apologies for the extremely agonizing
circumstances into which they were placed. (Excerpt from Telephone
Conference by Prime Minister Abe to President George W. Bush, April 3,
2007).

I have to express sympathy from the bottom of my heart to those people who
were taken as wartime comfort women. As a human being, I would like to
express my sympathies, and also as prime minister of Japan I need to
 apologize to them. My administration has been saying all along that we
continue to stand by the Kono Statement. We feel responsible for having
forced these women to go through that hardship and pain as comfort women
under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in

sympathy to all those who suffered extreme hardships as comfort women; and
I expressed my apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in many parts of the
world during the 20th Century; therefore we must work to make the 21st
Century a wonderful century in which no human rights are violated. And the
Government of Japan and I wish to make significant contributions to that end.
(Excerpt from Prime Minister Abe's remarks at the Joint Press Availability
after the summit meeting at Camp David between Prime Minister Abe and
President Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the

government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system.[37] The purpose of the AWF was
to show atonement of the Japanese people through expressions of apology and remorse
to the former wartime comfort women, to restore their honor, and to demonstrate Japans
strong respect for women.[38]

The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came from the Japanese government and
private donations from the Japanese people. As of March 2006, the AWF provided 700
million (approximately $7 million) for these programs in South Korea, Taiwan, and
the Philippines; 380 million (approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort
women. Over the next five years, these were implemented by the Department of Social
Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for
official apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the

Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners claims against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question

is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on question.

In Taada v. Cuenco,[40] we held that political questions refer "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."

Certain types of cases often have been found to present political questions. [41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by the Constitution to the
executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision."[42] The US Supreme Court has further cautioned that
decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements.[44]However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but
to the political branches. In this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held
that [t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.

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 where 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. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle
was, perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice
v. Lantion:[48]

x x x The conduct of foreign relations is full of complexities and

consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data.In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners cause would be
inimical to our countrys foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for stability in this region. For us to
overturn the Executive Departments determination would mean an assessment of the
foreign policy judgments by a coordinate political branch to which authority to make that
judgment has been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:
 x x x [g]overnments have dealt with x x x private claims as their own, treating
them as national assets, and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims deriving from private
debts with others that were intergovernmental in origin, and concessions in
regard to one category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to debts.[49]

Indeed, except as an agreement might otherwise provide, international settlements

generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,[50] a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that
after peace is concluded, neither the matter in dispute, nor the conduct of either
party, during the war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government, or people of
either, during the war, are buried in oblivion; and all those things are implied
by the very treaty of peace; and therefore not necessary to be expressed. Hence
it follows, that the restitution of, or compensation for, British property
confiscated, or extinguished, during the war, by any of the United States, could
only be provided for by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be agitated after the
treaty, by the British government, much less by her subjects in courts of
justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly

nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of

one country against the government of another country are sources of friction
between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often
entered into agreements settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling claims by nationals of
one state against the government of another are established international
practice reflecting traditional international theory. L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its
 nationals against foreign countries. x x x Under such agreements, the President
has agreed to renounce or extinguish claims of United States nationals against
foreign governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged
by the United States claimants themselves, since a claimant's only hope of
obtaining any payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that the United
States has sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually without exclusive
regard for their interests, as distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign
Relations Law of the United States 213 (1965) (President may waive or settle
a claim against a foreign state x x x [even] without the consent of the [injured]
national). It is clear that the practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security
purposes. The treaty sought to prevent the spread of communism in Japan, which
occupied a strategic position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave
labor during the war.[52] In a consolidated case in the Northern District of California,
[53]
the court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,
[54]
because of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of

the agreement was to settle the reparations issue once and for all. As the
statement of the chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility of future
claims would be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of

peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.
 On the other hand, to meet these claims, there stands
a Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x

The policy of the United States that Japanese liability for reparations should
be sharply limited was informed by the experience of six years of United
States-led occupation of Japan. During the occupation the Supreme
Commander of the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with the task of
managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial
condition would render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that [t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in Japan should be combated
with all possible means and recommended that the reparations issue be settled
finally and without delay.

That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:

Obviously insistence upon the payment of reparations in any

proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy the
initiative of its people, and create misery and chaos in which the
seeds of discontent and communism would flourish. In short,
[it] would be contrary to the basic purposes and policy of x x
x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a
general principle and particularly here, where such an extraordinary length of time has
lapsed between the treatys conclusion and our consideration the Executive must be given
ample discretion to assess the foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is not under any
international obligation to espouse petitioners
claims.

In the international sphere, traditionally, the only means available for individuals to bring
a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf. [55] Even then, it is not
the individuals rights that are being asserted, but rather, the states own rights. Nowhere is
this position more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic

action or international judicial proceedings on his behalf, a State is in reality
asserting its own right to ensure, in the person of its subjects, respect for the
rules of international law. The question, therefore, whether the present dispute
originates in an injury to a private interest, which in point of fact is the case in
many international disputes, is irrelevant from this standpoint. Once a State
has taken up a case on behalf of one of its subjects before an international
tribunal, in the eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:

The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal person on whose behalf it is
acting consider that their rights are not adequately protected, they have
no remedy in international law. All they can do is resort to national law, if
means are available, with a view to furthering their cause or obtaining redress.
The municipal legislator may lay upon the State an obligation to protect its
citizens abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the province of
 municipal law and do not affect the position internationally.[58] (Emphasis
supplied)

The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.

The International Law Commissions (ILCs) Draft Articles on Diplomatic

Protection fully support this traditional view. They (i) state that "the right of diplomatic
protection belongs to or vests in the State,[59] (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii)
stress that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present, there
is no sufficient evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad. [63] Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law.
[65]
However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive
by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed, precisely because of states reluctance to directly prosecute
claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of
international crimes.[66]Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy
arguments warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes. [67] Of course a customary
duty of prosecution is ideal, but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.[68]

Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used
as a legal term describing obligations owed by States towards the community of states as
a whole. The concept was recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a

State towards the international community as a whole, and those arising vis--
vis another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from

the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law
others are conferred by international instruments of a universal or quasi-
universal character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing
a belief in the emergence of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.[69]
The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent
authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s, [71] but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law.[72] The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties (VCLT). [73] Though there
was a consensus that certain international norms had attained the status of jus cogens,
[74]
the ILC was unable to reach a consensus on the proper criteria for identifying
peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens.[75] In a
commentary accompanying the draft convention, the ILC indicated that the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals. [76] Thus, while the existence
of jus cogens in international law is undisputed, no consensus exists on its substance,
[77]
beyond a tiny core of principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot

begin to comprehend the unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora. Needless to say, our government
should take the lead in protecting its citizens against violation of their fundamental
human rights. Regrettably, it is not within our power to order the Executive Department
to take up the petitioners cause. Ours is only the power to urge and exhort the Executive
Department to take up petitioners cause.
 WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
 EN BANC

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major

General Josephus Q. Ramas and Elizabeth
Dimaano, respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside
the Resolutions of the Sandiganbayan (First Division) dated 18 November
[1]

1991 and 25 March 1992 in Civil Case No. 0037. The first Resolution
dismissed petitioners Amended Complaint and ordered the return of the
confiscated items to respondent Elizabeth Dimaano, while the second
Resolution denied petitioners Motion for Reconsideration. Petitioner prays for
the grant of the reliefs sought in its Amended Complaint, or in the alternative,
for the remand of this case to the Sandiganbayan (First Division) for further
proceedings allowing petitioner to complete the presentation of its evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA

Revolution, then President Corazon C. Aquino issued Executive Order No. 1
(EO No. 1) creating the Presidential Commission on Good Government
(PCGG). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth
of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the
power (a) to conduct investigation as may be necessary in order to
accomplish and carry out the purposes of this order and the power (h) to
promulgate such rules and regulations as may be necessary to carry out the
purpose of this order. Accordingly, the PCGG, through its then Chairman
Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to
investigate reports of unexplained wealth and corrupt practices by AFP
personnel, whether in the active service or retired. [2]

Based on its mandate, the AFP Board investigated various reports of

alleged unexplained wealth of respondent Major General Josephus Q. Ramas
(Ramas). On 27 July 1987, the AFP Board issued a Resolution on its findings
and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located
at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located
in Cebu City. The lot has an area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly
at P700,000.00.

The equipment/items and communication facilities which were found in the premises
of Elizabeth Dimaano and were confiscated by elements of the PC Command of
Batangas were all covered by invoice receipt in the name of CAPT. EFREN SALIDO,
RSO Command Coy, MSC, PA. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent Commanding General of the
Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding
team was also able to confiscate money in the amount of P2,870,000.00 and $50,000
US Dollars in the house of Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command,

Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.

This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth.Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna,
the existence and ownership of these money would have never been known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny
and analysis by the Boards consultant. Although the amount of P2,870,000.00 and
$50,000 US Dollars were not included, still it was disclosed that respondent has an
unexplained wealth of P104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00 and
$50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted

and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property. [3]

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under
Republic Act No. 1379 (RA No. 1379) against Ramas.
[4]
 Before Ramas could answer the petition, then Solicitor General Francisco
I. Chavez filed an Amended Complaint naming the Republic of the Philippines
(petitioner), represented by the PCGG, as plaintiff and Ramas as
defendant. The Amended Complaint also impleaded Elizabeth Dimaano
(Dimaano) as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding

General of the Philippine Army until 1986. On the other hand, Dimaano was a
confidential agent of the Military Security Unit, Philippine Army, assigned as a
clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas acquired funds, assets and
properties manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue advantage
of his public office and/or using his power, authority and influence as such
officer of the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos. [5]

The Amended Complaint also alleged that the AFP Board, after a previous
inquiry, found reasonable ground to believe that respondents have violated RA
No. 1379. The Amended Complaint prayed for, among others, the forfeiture
[6]

of respondents properties, funds and equipment in favor of the State.

Ramas filed an Answer with Special and/or Affirmative Defenses and

Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas
contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of
proportion to his salary and other legitimate income. He denied ownership of
any mansion in Cebu City and the cash, communications equipment and other
items confiscated from the house of Dimaano.

Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November
1978 only, Dimaano claimed ownership of the monies, communications
equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.

After termination of the pre-trial, the court set the case for trial on the
[7]

merits on 9-11 November 1988.

 On 9 November 1988, petitioner asked for a deferment of the hearing due
to its lack of preparation for trial and the absence of witnesses and vital
documents to support its case. The court reset the hearing to 17 and 18 April
1989.

On 13 April 1989, petitioner filed a motion for leave to amend the

complaint in order to charge the delinquent properties with being subject to
forfeiture as having been unlawfully acquired by defendant Dimaano alone x x
x.
[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan

proceeded with petitioners presentation of evidence on the ground that the
motion for leave to amend complaint did not state when petitioner would file
the amended complaint. The Sandiganbayan further stated that the subject
matter of the amended complaint was on its face vague and not related to the
existing complaint. The Sandiganbayan also held that due to the time that the
case had been pending in court, petitioner should proceed to present its
evidence.

After presenting only three witnesses, petitioner asked for a postponement

of the trial.

On 28 September 1989, during the continuation of the trial, petitioner

manifested its inability to proceed to trial because of the absence of other
witnesses or lack of further evidence to present. Instead, petitioner reiterated
its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for
over a year mainly because of its many postponements. Moreover, petitioner
would want the case to revert to its preliminary stage when in fact the case
had long been ready for trial. The Sandiganbayan ordered petitioner to
prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to
present further evidence. Giving petitioner one more chance to present further
evidence or to amend the complaint to conform to its evidence, the
Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however,
hinted that the re-setting was without prejudice to any action that private
respondents might take under the circumstances.

However, on 18 May 1990, petitioner again expressed its inability to

proceed to trial because it had no further evidence to present. Again, in the
interest of justice, the Sandiganbayan granted petitioner 60 days within which
to file an appropriate pleading. The Sandiganbayan, however, warned
petitioner that failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic

v. Migrino. The Court held in Migrino that the PCGG does not have
[9]

jurisdiction to investigate and prosecute military officers by reason of mere

position held without a showing that they are subordinates of former President
Marcos.

On 18 November 1991, the Sandiganbayan rendered a resolution, the

dispositive portion of which states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,

without pronouncement as to costs. The counterclaims are likewise dismissed for lack
of merit, but the confiscated sum of money, communications equipment, jewelry and
land titles are ordered returned to Elizabeth Dimaano.

The records of this case are hereby remanded and referred to the Hon. Ombudsman,
who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such
appropriate action as the evidence warrants. This case is also referred to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano in connection herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a

Joint Comment/Opposition to which petitioner filed its Reply on 10 January
1992.
 On 25 March 1992, the Sandiganbayan rendered a Resolution denying the
Motion for Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following

grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan and Republic v.
[10]

Migrino which involve the same issues.

[11]

(2.) No previous inquiry similar to preliminary investigations in criminal cases

was conducted against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case
against him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT

PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS
WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN
RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.

B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE

ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING
OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:
 1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in

Civil Case No. 0037 was cured and/or waived by
respondents with the filing of their respective answers with
counterclaim; and

3. The separate motions to dismiss were evidently improper

considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even
before the latter was allowed to formally offer its evidence
and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE

ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.[12]

The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this

Court in Cruz, Jr. v. Sandiganbayan and Republic v. Migrino.
[13] [14]

The primary issue for resolution is whether the PCGG has the jurisdiction
to investigate and cause the filing of a forfeiture petition against Ramas and
Dimaano for unexplained wealth under RA No. 1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth
and corrupt practices of AFP personnel, whether in the active service or
retired. The PCGG tasked the AFP Board to make the necessary
[15]

recommendations to appropriate government agencies on the action to be

taken based on its findings. The PCGG gave this task to the AFP Board
[16]

pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct

investigation as may be necessary in order to accomplish and to carry out the
purposes of this order. EO No. 1 gave the PCGG specific responsibilities, to
wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President

Ferdinand E. Marcos, his immediate family, relatives, subordinates and
close associates, whether located in the Philippines or abroad,
including the takeover and sequestration of all business enterprises and
entities owned or controlled by them, during his administration,
directly or through nominees, by taking undue advantage of their
public office and/ or using their powers, authority, influence,
connections or relationship.

(b) The investigation of such cases of graft and corruption as the President
may assign to the Commission from time to time.

x x x.

The PCGG, through the AFP Board, can only investigate the unexplained
wealth and corrupt practices of AFP personnel who fall under either of the two
categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel
who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latters immediate family, relative, subordinate
or close associate, taking undue advantage of their public office or using their
powers, influence x x x; or (2) AFP personnel involved in other cases of graft
[17]

and corruption provided the President assigns their cases to the PCGG. [18]

Petitioner, however, does not claim that the President assigned Ramas
case to the PCGG. Therefore, Ramas case should fall under the first category
of AFP personnel before the PCGG could exercise its jurisdiction over
him. Petitioner argues that Ramas was undoubtedly a subordinate of former
President Marcos because of his position as the Commanding General of the
Philippine Army. Petitioner claims that Ramas position enabled him to receive
orders directly from his commander-in-chief, undeniably making him a
subordinate of former President Marcos.
 We hold that Ramas was not a subordinate of former President Marcos in
the sense contemplated under EO No. 1 and its amendments.

Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a
showing that he enjoyed close association with former President
Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term subordinate. The Whereas Clauses of EO No. 1 express
the urgent need to recover the ill-gotten wealth amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close associates both here
and abroad.

EO No. 2 freezes all assets and properties in the Philippines in which former President
Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates,
business associates, dummies, agents, or nominees have any interest or participation.

Applying the rule in statutory construction known as ejusdem generis that is-

[W]here general words follow an enumeration of persons or things by words of a

particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds
of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2 ndEd., 203].

[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the immediate
family member, relative, and close associate in EO No. 1 and the close relative,
business associate, dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official
or employee during the administration of former President Marcos. There must be a
prima facie showing that the respondent unlawfully accumulated wealth by virtue
of his close association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
 Ramas position alone as Commanding General of the Philippine Army with
the rank of Major General does not suffice to make him a subordinate of
[19]

former President Marcos for purposes of EO No. 1 and its amendments. The
PCGG has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that business
associates, dummies, agents or nominees of former President Marcos were
close to him. Such close association is manifested either by Ramas complicity
with former President Marcos in the accumulation of ill-gotten wealth by the
deposed President or by former President Marcos acquiescence in Ramas
own accumulation of ill-gotten wealth if any.

This, the PCGG failed to do.

Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board
Resolution in the instant case states that the AFP Board conducted the
investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No.
1379. Petitioner asserts that there is a presumption that the PCGG was acting
within its jurisdiction of investigating crony-related cases of graft and
corruption and that Ramas was truly a subordinate of the former
President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with
the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted

and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property.
[20]

Thus, although the PCGG sought to investigate and prosecute private

respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of
violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos.
1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments
proves fatal to petitioners case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to
address such specific and limited purpose.
 Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned were
accumulated by him in his capacity as a subordinate of his commander-in-
chief. Petitioner merely enumerated the properties Ramas allegedly owned
and suggested that these properties were disproportionate to his salary and
other legitimate income without showing that Ramas amassed them because
of his close association with former President Marcos. Petitioner, in
fact, admits that the AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close association with former
President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a; (Emphasis supplied)
[21]

Such omission is fatal. Petitioner forgets that it is precisely a prima

facie showing that the ill-gotten wealth was accumulated by a subordinate of
former President Marcos that vests jurisdiction on PCGG. EO No. 1 clearly [22]

premises the creation of the PCGG on the urgent need to recover all ill-gotten
wealth amassed by former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such omission was
not fatal is clearly contrary to the intent behind the creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan, the Court outlined the cases that fall
[23]

under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 14, 14-A: [24] [25] [26]

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-
gotten wealth under Republic Act No. 1379, accumulated by former
President Marcos, his immediate family, relatives, subordinates and
 close associates, whether located in the Philippines or abroad, including
the take-over or sequestration of all business enterprises and entities
owned or controlled by them, during his administration, directly or
through his nominees, by taking undue advantage of their public
office and/or using their powers, authority and influence,
connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the

acquisition of said ill-gotten wealth as contemplated under Section 2(a)
of Executive Order No. 1.

However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate
and prosecute forfeiture petitions not falling under EO No. 1 and its
amendments. The preliminary investigation of unexplained wealth amassed
on or before 25 February 1986 falls under the jurisdiction of the Ombudsman,
while the authority to file the corresponding forfeiture petition rests with the
Solicitor General. The Ombudsman Act or Republic Act No. 6770 (RA No.
[27]

6770) vests in the Ombudsman the power to conduct preliminary investigation

and to file forfeiture proceedings involving unexplained wealth amassed after
25 February 1986. [28]

After the pronouncements of the Court in Cruz, the PCGG still pursued
this case despite the absence of a prima facie finding that Ramas was a
subordinate of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board Resolution and
even the Amended Complaint state that there are violations of RA Nos. 3019
and 1379. Thus, the PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the
PCGG must also be enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The rule of law mandates
that an agency of government be allowed to exercise only the powers granted to it.

Petitioners argument that private respondents have waived any defect in

the filing of the forfeiture petition by submitting their respective Answers with
counterclaim deserves no merit as well.

Petitioner has no jurisdiction over private respondents. Thus, there is no

jurisdiction to waive in the first place. The PCGG cannot exercise investigative
or prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole
task is only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies. Without these elements, the PCGG cannot claim jurisdiction over a
[29]

case.

Private respondents questioned the authority and jurisdiction of the PCGG

to investigate and prosecute their cases by filing their Motion to Dismiss as
soon as they learned of the pronouncement of the Court in Migrino. This case
was decided on 30 August 1990, which explains why private respondents only
filed their Motion to Dismiss on 8 October 1990.Nevertheless, we have held
that the parties may raise lack of jurisdiction at any stage of the proceeding.
Thus, we hold that there was no waiver of jurisdiction in this case.
[30]

Jurisdiction is vested by law and not by the parties to an action. [31]

Consequently, the petition should be dismissed for lack of jurisdiction by

the PCGG to conduct the preliminary investigation. The Ombudsman may still
conduct the proper preliminary investigation for violation of RA No. 1379, and
if warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan. The right of the State to forfeit unexplained wealth under RA
[32]

No. 1379 is not subject to prescription, laches or estoppel. [33]

 Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the

case before completion of the presentation of petitioners evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case,
we find that petitioner has only itself to blame for non-completion of the
presentation of its evidence. First, this case has been pending for four years
before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11 August 1987, and only began to
present its evidence on 17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing numerous motions
for postponements and extensions. Even before the date set for the
presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for
Leave to Amend the Complaint. The motion sought to charge the delinquent
[34]

properties (which comprise most of petitioners evidence) with being subject to

forfeiture as having been unlawfully acquired by defendant Dimaano alone x x
x.

The Sandiganbayan, however, refused to defer the presentation of

petitioners evidence since petitioner did not state when it would file the
amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on 28
September 1989, petitioner manifested its inability to proceed with the
presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay hereon
has been due to the inability of the government to produce on scheduled dates for pre-
trial and for trial documents and witnesses, allegedly upon the failure of the military
to supply them for the preparation of the presentation of evidence thereon. Of equal
interest is the fact that this Court has been held to task in public about its alleged
failure to move cases such as this one beyond the preliminary stage, when, in view of
the developments such as those of today, this Court is now faced with a situation
where a case already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been undertaken by the
plaintiff Republic.
[35]

On 9 October 1989, the PCGG manifested in court that it was conducting

a preliminary investigation on the unexplained wealth of private respondents
as mandated by RA No. 1379. The PCGG prayed for an additional four
[36]

months to conduct the preliminary investigation. The Sandiganbayan granted

this request and scheduled the presentation of evidence on 26-29 March
1990. However, on the scheduled date, petitioner failed to inform the court of
the result of the preliminary investigation the PCGG supposedly conducted.
Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with
the presentation of its evidence and to inform the court of what lies ahead
insofar as the status of the case is concerned x x x. Still on the date set,
[37]

petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner

filed its Re-Amended Complaint. The Sandiganbayan correctly observed that
[38]

a case already pending for years would revert to its preliminary stage if the
court were to accept the Re-Amended Complaint.

Based on these circumstances, obviously petitioner has only itself to

blame for failure to complete the presentation of its evidence. The
Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioners
delays and yet petitioner ended the long-string of delays with the filing of a
Re-Amended Complaint, which would only prolong even more the disposition
of the case.

Moreover, the pronouncements of the Court

in Migrino and Cruz prompted the Sandiganbayan to dismiss the case since
the PCGG has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private respondents.
 Thus, we hold that the Sandiganbayan did not err in dismissing the case
before completion of the presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties

confiscated from Dimaanos house as illegally seized and therefore
inadmissible in evidence. This issue bears a significant effect on petitioners
case since these properties comprise most of petitioners evidence against
private respondents. Petitioner will not have much evidence to support its
case against private respondents if these properties are inadmissible in
evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaanos

residence a search warrant captioned Illegal Possession of Firearms and
Ammunition. Dimaano was not present during the raid but Dimaanos cousins
witnessed the raid. The raiding team seized the items detailed in the seizure
receipt together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two magazines;
40 rounds of 5.56 ammunition; one pistol, caliber .45; communications
equipment, cash consisting of P2,870,000 and US$50,000, jewelry, and land
titles.

Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
successful EDSA revolution. Petitioner argues that a revolutionary
[39]

government was operative at that time by virtue of Proclamation No. 1

announcing that President Aquino and Vice President Laurel were taking
power in the name and by the will of the Filipino people. Petitioner asserts
[40]

that the revolutionary government effectively withheld the operation of the

1973 Constitution which guaranteed private respondents exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an

illegal search applies only beginning 2 February 1987, the date of ratification
of the 1987 Constitution. Petitioner contends that all rights under the Bill of
Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their
seizure, private respondents did not enjoy any constitutional right.

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly

stated in President Aquinos Proclamation No. 3 dated 25 March 1986, the
EDSA Revolution was done in defiance of the provisions of the 1973
Constitution. The resulting government was indisputably a revolutionary
[41]

government bound by no constitution or legal limitations except treaty

obligations that the revolutionary government, as the de jure government in
the Philippines, assumed under international law.

The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during the interregnum,
that is, after the actual and effective take-over of power by the revolutionary
government following the cessation of resistance by loyalist forces up to 24
March 1986 (immediately before the adoption of the Provisional Constitution);
and (2) whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights (Covenant) and the Universal
Declaration of Human Rights (Declaration) remained in effect during the
interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained in
effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary

government were the supreme law because no constitution limited the extent
and scope of such directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during
the interregnum, a person could not invoke any exclusionary right under a Bill
of Rights because there was neither a constitution nor a Bill of Rights during
the interregnum. As the Court explained in Letter of Associate Justice
Reynato S. Puno: [42]
A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it or as a
sudden, radical and fundamental change in the government or political system, usually
effected with violence or at least some acts of violence. In Kelsen's book, General
Theory of Law and State, it is defined as that which occurs whenever the legal order
of a community is nullified and replaced by a new order . . . a way not prescribed by
the first order itself.

It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the unprecedented
rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising
when the legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable. It has been said that the locus of
positive law-making power lies with the people of the state and from there is derived
the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.

xxx

It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of the
1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr.
Marcos as the winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little resistance and her
control of the state evidenced by the appointment of the Cabinet and other key officers
of the administration, the departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal system then in effect,
had ceased to be obeyed by the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration orders
issued by the Philippine Commission on Good Government (PCGG) before
the adoption of the Freedom Constitution. The sequestration orders, which
direct the freezing and even the take-over of private property by mere
executive issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.

During the interregnum, the government in power was concededly a

revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential

Commission on Good Government, petitioner Baseco, while conceding
[43]

there was no Bill of Rights during the interregnum, questioned the continued
validity of the sequestration orders upon adoption of the Freedom Constitution
in view of the due process clause in its Bill of Rights. The Court ruled that the
Freedom Constitution, and later the 1987 Constitution, expressly
recognized the validity of sequestration orders, thus:

If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty of
the President to enact measures to achieve the mandate of the people to . . . (r)ecover
ill-gotten properties amassed by the leaders and supporters of the previous regime and
protect the interest of the people through orders of sequestration or freezing of assets
or accounts. And as also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986.

The framers of both the Freedom Constitution and the 1987 Constitution
were fully aware that the sequestration orders would clash with the Bill of
Rights. Thus, the framers of both constitutions had to include specific
language recognizing the validity of the sequestration orders. The following
discourse by Commissioner Joaquin G. Bernas during the deliberations of the
Constitutional Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the

arguments in defense of the present amendment.

For instance, I have carefully studied Minister Salongas lecture in the

Gregorio Araneta University Foundation, of which all of us have been given a
copy. On the one hand, he argues that everything the Commission is doing is
traditionally legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that argument. On
the other hand, almost as an afterthought, he says that in the end what matters
are the results and not the legal niceties, thus suggesting that the PCGG
should be allowed to make some legal shortcuts, another word for niceties or
exceptions.

Now, if everything the PCGG is doing is legal, why is it asking the CONCOM
for special protection? The answer is clear. What they are doing will not
stand the test of ordinary due process, hence they are asking for protection,
for exceptions. Grandes malos, grandes remedios, fine, as the saying stands,
but let us not say grandes malos, grande y malos remedios. That is not an
allowable extrapolation. Hence, we should not give the exceptions asked for,
and let me elaborate and give three reasons:

First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the heart of
the constitutional normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and at the same
time ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word
for that is backsliding. It is tragic when we begin to backslide even before we
get there.

Second, this is really a corollary of the first. Habits tend to become ingrained.
The committee report asks for extraordinary exceptions from the Bill of
Rights for six months after the convening of Congress, and Congress may
even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What
the committee report is asking for is that we should allow the new government
to acquire the vice of disregarding the Bill of Rights.

Vices, once they become ingrained, become difficult to shed. The practitioners
of the vice begin to think that they have a vested right to its practice, and they
will fight tooth and nail to keep the franchise. That would be an unhealthy
way of consolidating the gains of a democratic revolution.

Third, the argument that what matters are the results and not the legal niceties
is an argument that is very disturbing. When it comes from a staunch Christian
like Commissioner Salonga, a Minister, and repeated verbatim by another
staunch Christian like Commissioner Tingson, it becomes doubly disturbing
and even discombobulating. The argument makes the PCGG an auctioneer,
placing the Bill of Rights on the auction block. If the price is right, the search
and seizure clause will be sold. Open your Swiss bank account to us and we
will award you the search and seizure clause. You can keep it in your private
safe.

Alternatively, the argument looks on the present government as hostage to the

hoarders of hidden wealth. The hoarders will release the hidden health if the
ransom price is paid and the ransom price is the Bill of Rights, specifically the
due process in the search and seizure clauses. So, there is something
positively revolving about either argument. The Bill of Rights is not for sale to
the highest bidder nor can it be used to ransom captive dollars. This nation
will survive and grow strong, only if it would become convinced of the values
enshrined in the Constitution of a price that is beyond monetary estimation.

For these reasons, the honorable course for the Constitutional Commission is
to delete all of Section 8 of the committee report and allow the new
Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has
two options. First, it can pursue the Salonga and the Romulo argument that
what the PCGG has been doing has been completely within the pale of the
law. If sustained, the PCGG can go on and should be able to go on, even
without the support of Section 8. If not sustained, however, the PCGG has
only one honorable option, it must bow to the majesty of the Bill of Rights.
 The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with
the law. From his prison cell, Thomas More said, "I'll give the devil benefit of
law for my nations safety sake. I ask the Commission to give the devil benefit
of law for our nations sake. And we should delete Section 8.

Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the

amendment excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section 26,
Article XVIII of the 1987 Constitution. The framers of the Constitution were
[44]

fully aware that absent Section 26, sequestration orders would not stand the
test of due process under the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in
force during the interregnum, absent a constitutional provision excepting
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even during
the interregnum the Filipino people continued to enjoy, under the Covenant
and the Declaration, almost the same rights found in the Bill of Rights of the
1973 Constitution.

The revolutionary government, after installing itself as the de

jure government, assumed responsibility for the States good faith compliance
with the Covenant to which the Philippines is a signatory. Article 2(1) of the
Covenant requires each signatory State to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant. Under Article 17(1) of the
[45]

Covenant, the revolutionary government had the duty to insure that [n]o one
shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence.

The Declaration, to which the Philippines is also a signatory, provides in its

Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although
the signatories to the Declaration did not intend it as a legally binding
document, being only a declaration, the Court has interpreted the Declaration
as part of the generally accepted principles of international law and binding on
the State. Thus, the revolutionary government was also obligated under
[46]

international law to observe the rights of individuals under the Declaration.

[47]

The revolutionary government did not repudiate the Covenant or the

Declaration during the interregnum. Whether the revolutionary government
could have repudiated all its obligations under the Covenant or the
Declaration is another matter and is not the issue here. Suffice it to say that
the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the revolutionary
government did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States good
faith compliance with its treaty obligations under international law.

It was only upon the adoption of the Provisional Constitution on 25 March

1986 that the directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered such
directives and orders void. The Provisional Constitution adopted verbatim the
Bill of Rights of the 1973 Constitution. The Provisional Constitution served as
[48]

a self-limitation by the revolutionary government to avoid abuses of the

absolute powers entrusted to it by the people.

During the interregnum when no constitution or Bill of Rights existed,

directives and orders issued by government officers were valid so long as
these officers did not exceed the authority granted them by the revolutionary
government. The directives and orders should not have also violated the
Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did
not repudiate it. The warrant, issued by a judge upon proper application,
specified the items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.

However, the Constabulary raiding team seized items not included in the
warrant. As admitted by petitioners witnesses, the raiding team confiscated
items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons.
What else, aside from the weapons, were seized from the house of Miss
Elizabeth Dimaano?

A. The communications equipment, money in Philippine currency and US dollars,

some jewelries, land titles, sir.

Q. Now, the search warrant speaks only of weapons to be seized from the house
of Elizabeth Dimaano. Do you know the reason why your team also seized
other properties not mentioned in said search warrant?

A. During the conversation right after the conduct of said raid, I was informed that
the reason why they also brought the other items not included in the search
warrant was because the money and other jewelries were contained in
attach cases and cartons with markings Sony Trinitron, and I think three (3)
vaults or steel safes. Believing that the attach cases and the steel safes
were containing firearms, they forced open these containers only to find out
that they contained money.

xxx

Q. You said you found money instead of weapons, do you know the reason why
your team seized this money instead of weapons?

A. I think the overall team leader and the other two officers assisting him decided
to bring along also the money because at that time it was already dark and
they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.[49]

Cross-examination

Atty. Banaag

Q. Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?

A. Yes, sir.

Q. And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?

A. Yes, sir.
xxx

AJ AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?

A. The Intelligence Operatives conducted surveillance together with the MSU

elements, your Honor.

Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth Dimaano?

A. Yes, your Honor.

Q. And they so swore before the Municipal Trial Judge?

A. Yes, your Honor.

Q. But they did not mention to you, the applicant for the search warrant, any other
properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?

A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we have
not established concrete evidence about that. So when

Q. So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?

A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-
16 and how many ammunition?

A. Forty, sir.

Q. And this became the subject of your complaint with the issuing Court, with the
fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms and Ammunition?

A. Yes, sir.
 Q. Do you know what happened to that case?

A. I think it was dismissed, sir.

Q. In the fiscals office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?

A. I think that was the reason, sir.

Q. There were other articles seized which were not included in the search warrant,
like for instance, jewelries. Why did you seize the jewelries?

A. I think it was the decision of the overall team leader and his assistant to bring
along also the jewelries and other items, sir. I do not really know where it
was taken but they brought along also these articles. I do not really know
their reason for bringing the same, but I just learned that these were taken
because they might get lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were not also included
in the search warrant?

A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were
suspected to be containing pistols or other high powered firearms, but in the
course of the search the contents turned out to be money. So the team
leader also decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.

Q. That holds true also with respect to the other articles that were seized by your
raiding team, like Transfer Certificates of Title of lands?

A. Yes, sir. I think they were contained in one of the vaults that were opened.[51]

It is obvious from the testimony of Captain Sebastian that the warrant did
not include the monies, communications equipment, jewelry and land titles
that the raiding team confiscated.The search warrant did not particularly
describe these items and the raiding team confiscated them on its own
authority. The raiding team had no legal basis to seize these items without
showing that these items could be the subject of warrantless search and
seizure. Clearly, the raiding team exceeded its authority when it seized these
[52]

items.

The seizure of these items was therefore void, and unless these items are
contraband per se, and they are not, they must be returned to the person
[53]

from whom the raiding seized them. However, we do not declare that such
person is the lawful owner of these items, merely that the search and seizure
warrant could not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned immediately to
Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned

Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue for
a determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.

SO ORDERED.
 EN BANC

BRITISH AMERICAN TOBACCO, G.R. No. 163583

Petitioner,
Present:

Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
Austria-Martinez,
Corona,
- versus - Carpio Morales,
Tinga,
Chico-Nazario,
Velasco, Jr.,
Nachura,
Leonardo-De Castro,
Brion,
Peralta, and
Bersamin, JJ.
JOSE ISIDRO N. CAMACHO,
in his capacity as Secretary of
the Department of Finance and
GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of
the Bureau of Internal Revenue,
Respondents.
PHILIP MORRIS PHILIPPINES
MANUFACTURING, INC.,
FORTUNE TOBACCO, CORP., Promulgated:
MIGHTY CORPOR.A.TION, and
JT INTERNATIONAL, S.A.,
Respondents-in-Intervention. April 15, 2009

x ---------------------------------------------------------------------------------------- x
 RESOLUTION

YNARES-SANTIAGO, J.:

On August 20, 2008, the Court rendered a Decision partially granting the
petition in this case, viz:

WHEREFORE, the petition is PARTIALLY GRANTED and the

decision of the Regional Trial Court of Makati, Branch 61, in Civil Case No. 03-
1032, is AFFIRMED with MODIFICATION. As modified, this Court declares
that:

(1) Section 145 of the NIRC, as amended by Republic Act No. 9334,
is CONSTITUTIONAL; and that

(2) Section 4(B)(e)(c), 2nd paragraph of Revenue Regulations No. 1-97, as

amended by Section 2 of Revenue Regulations 9-2003, and Sections II(1)(b), II(4)
(b), II(6), II(7), III (Large Tax Payers Assistance Division II) II(b) of Revenue
Memorandum Order No. 6-2003, insofar as pertinent to cigarettes packed by
machine, are INVALID insofar as they grant the BIR the power to reclassify or
update the classification of new brands every two years or earlier.

SO ORDERED.

In its Motion for Reconsideration, petitioner insists that the assailed

provisions (1) violate the equal protection and uniformity of taxation clauses of the
Constitution, (2) contravene Section 19,[1] Article XII of the Constitution on unfair
competition, and (3) infringe the constitutional provisions on regressive and
inequitable taxation. Petitioner further argues that assuming the assailed provisions
are constitutional, petitioner is entitled to a downward reclassification of Lucky
Strike from the premium-priced to the high-priced tax bracket.

The Court is not persuaded.

The assailed law does not violate the equal

protection and uniformity of taxation
clauses.

Petitioner argues that the classification freeze provision violates the equal
protection and uniformity of taxation clauses because Annex D brands are taxed
based on their 1996 net retail prices while new brands are taxed based on their
present day net retail prices. Citing Ormoc Sugar Co. v. Treasurer of Ormoc City,
[2]
petitioner asserts that the assailed provisions accord a special or privileged status
to Annex D brands while at the same time discriminate against other brands.

These contentions are without merit and a rehash of petitioners previous arguments
before this Court. As held in the assailed Decision, the instant case neither involves
a suspect classification nor impinges on a fundamental right. Consequently, the
rational basis test was properly applied to gauge the constitutionality of the
assailed law in the face of an equal protection challenge. It has been held that in the
areas of social and economic policy, a statutory classification that neither proceeds
along suspect lines nor infringes constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification. [3] Under the rational basis test, it is
sufficient that the legislative classification is rationally related to achieving some
legitimate State interest. As the Court ruled in the assailed Decision, viz:

A legislative classification that is reasonable does not offend the

constitutional guaranty of the equal protection of the laws. The classification is
considered valid and reasonable provided that: (1) it rests on substantial
distinctions; (2) it is germane to the purpose of the law; (3) it applies, all things
being equal, to both present and future conditions; and (4) it applies equally to all
those belonging to the same class.

The first, third and fourth requisites are satisfied. The classification freeze
provision was inserted in the law for reasons of practicality and expediency. That
is, since a new brand was not yet in existence at the time of the passage of RA
8240, then Congress needed a uniform mechanism to fix the tax bracket of a new
brand. The current net retail price, similar to what was used to classify the brands
under Annex D as of October 1, 1996, was thus the logical and practical
choice. Further, with the amendments introduced by RA 9334, the freezing of the
tax classifications now expressly applies not just to Annex D brands but to newer
brands introduced after the effectivity of RA 8240 on January 1, 1997 and any
new brand that will be introduced in the future. (However, as will be discussed
later, the intent to apply the freezing mechanism to newer brands was already in
place even prior to the amendments introduced by RA 9334 to RA 8240.) This
does not explain, however, why the classification is frozen after its determination
based on current net retail price and how this is germane to the purpose of the
assailed law. An examination of the legislative history of RA 8240 provides
interesting answers to this question.

xxxx

From the foregoing, it is quite evident that the classification freeze

provision could hardly be considered arbitrary, or motivated by a hostile or
oppressive attitude to unduly favor older brands over newer brands. Congress was
unequivocal in its unwillingness to delegate the power to periodically adjust the
excise tax rate and tax brackets as well as to periodically resurvey and reclassify
the cigarette brands based on the increase in the consumer price index to the DOF
and the BIR. Congress doubted the constitutionality of such delegation of power,
and likewise, considered the ethical implications thereof. Curiously,
the classification freeze provision was put in place of the periodic adjustment and
reclassification provision because of the belief that the latter would foster an anti-
competitive atmosphere in the market. Yet, as it is, this same criticism is being
foisted by petitioner upon the classification freeze provision.

To our mind, the classification freeze provision was in the main the result
of Congresss earnest efforts to improve the efficiency and effectivity of the tax
administration over sin products while trying to balance the same with other State
interests. In particular, the questioned provision addressed Congresss
administrative concerns regarding delegating too much authority to the DOF and
BIR as this will open the tax system to potential areas for abuse and
corruption. Congress may have reasonably conceived that a tax system which
would give the least amount of discretion to the tax implementers would address
the problems of tax avoidance and tax evasion.

To elaborate a little, Congress could have reasonably foreseen that, under

the DOF proposal and the Senate Version, the periodic reclassification of brands
would tempt the cigarette manufacturers to manipulate their price levels or bribe
the tax implementers in order to allow their brands to be classified at a lower tax
bracket even if their net retail prices have already migrated to a higher tax bracket
after the adjustment of the tax brackets to the increase in the consumer price
index. Presumably, this could be done when a resurvey and reclassification is
forthcoming. As briefly touched upon in the Congressional deliberations, the
difference of the excise tax rate between the medium-priced and the high-priced
tax brackets under RA 8240, prior to its amendment, was P3.36. For a moderately
popular brand which sells around 100 million packs per year, this easily translates
to P336,000,000. The incentive for tax avoidance, if not outright tax evasion,
would clearly be present. Then again, the tax implementers may use the power to
periodically adjust the tax rate and reclassify the brands as a tool to unduly
oppress the taxpayer in order for the government to achieve its revenue targets for
a given year.

Thus, Congress sought to, among others, simplify the whole tax system for
sin products to remove these potential areas of abuse and corruption from both the
side of the taxpayer and the government. Without doubt, the classification freeze
provision was an integral part of this overall plan. This is in line with one of the
avowed objectives of the assailed law to simplify the tax administration and
compliance with the tax laws that are about to unfold in order to minimize losses
arising from inefficiencies and tax avoidance scheme, if not outright tax
evasion. RA 9334 did not alter this classification freeze provision of RA 8240. On
the contrary, Congress affirmed this freezing mechanism by clarifying the
 wording of the law. We can thus reasonably conclude, as the deliberations on RA
9334 readily show, that the administrative concerns in tax administration, which
moved Congress to enact the classification freeze provision in RA 8240, were
merely continued by RA 9334. Indeed, administrative concerns may provide a
legitimate, rational basis for legislative classification. In the case at bar, these
administrative concerns in the measurement and collection of excise taxes on sin
products are readily apparent as afore-discussed.

Aside from the major concern regarding the elimination of potential areas
for abuse and corruption from the tax administration of sin products, the
legislative deliberations also show that the classification freeze provision was
intended to generate buoyant and stable revenues for government. With the frozen
tax classifications, the revenue inflow would remain stable and the government
would be able to predict with a greater degree of certainty the amount of taxes
that a cigarette manufacturer would pay given the trend in its sales volume over
time. The reason for this is that the previously classified cigarette brands would be
prevented from moving either upward or downward their tax brackets despite the
changes in their net retail prices in the future and, as a result, the amount of taxes
due from them would remain predictable. The classification freeze
provision would, thus, aid in the revenue planning of the government.

All in all, the classification freeze provision addressed Congresss

administrative concerns in the simplification of tax administration of sin products,
elimination of potential areas for abuse and corruption in tax collection, buoyant
and stable revenue generation, and ease of projection of revenues. Consequently,
there can be no denial of the equal protection of the laws since the rational-basis
test is amply satisfied.

Moreover, petitioners contention that the assailed provisions violate the

uniformity of taxation clause is similarly unavailing. In Churchill v. Concepcion,
[4]
we explained that a tax is uniform when it operates with the same force and
effect in every place where the subject of it is found.[5] It does not signify an
intrinsic but simply a geographical uniformity.[6] A levy of tax is not
unconstitutional because it is not intrinsically equal and uniform in its operation.
[7]
The uniformity rule does not prohibit classification for purposes of taxation.
[8]
As ruled in Tan v. Del Rosario, Jr.:[9]

Uniformity of taxation, like the kindred concept of equal protection,

merely requires that all subjects or objects of taxation, similarly situated, are to be
treated alike both in privileges and liabilities (citations omitted). Uniformity does
not forfend classification as long as: (1) the standards that are used therefor are
substantial and not arbitrary, (2) the categorization is germane to achieve the
legislative purpose, (3) the law applies, all things being equal, to both present and
future conditions, and (4) the classification applies equally well to all those
belonging to the same class (citations omitted).[10]
In the instant case, there is no question that the classification freeze
provision meets the geographical uniformity requirement because the assailed law
applies to all cigarette brands in the Philippines. And, for reasons already adverted
to in our August 20, 2008 Decision, the above four-fold test has been met in the
present case.

Petitioners reliance on Ormoc Sugar Co. is misplaced. In said case, the

controverted municipal ordinance specifically named and taxed only the Ormoc
Sugar Company, and excluded any subsequently established sugar central from its
coverage. Thus, the ordinance was found unconstitutional on equal protection
grounds because its terms do not apply to future conditions as well. This is not the
case here. The classification freeze provision uniformly applies to all cigarette
brands whether existing or to be introduced in the market at some future time. It
does not purport to exempt any brand from its operation nor single out a brand for
the purpose of imposition of excise taxes.

At any rate, petitioners real disagreement lies with the legitimate State
interests. Although it concedes that the Court utilized the rationality test and that
the classification freeze provision was necessitated by several legitimate State
interests, however, it refuses to accept the justifications given by Congress for
the classification freeze provision. As we elucidated in our August 20, 2008
Decision, this line of argumentation revolves around the wisdom and expediency
of the assailed law which we cannot inquire into, much less overrule. Equal
protection is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices.[11] We reiterate, therefore, that petitioners remedy is with
Congress and not this Court.
The assailed provisions do not violate the
constitutional prohibition on unfair
competition.

Petitioner asserts that the Court erroneously applied the rational basis test
allegedly because this test does not apply in a constitutional challenge based on a
violation of Section 19, Article XII of the Constitution on unfair
competition. Citing Tatad v. Secretary of the Department of Energy,[12] it argues
that the classification freeze provision gives the brands under Annex D a decisive
edge because it constitutes a substantial barrier to the entry of prospective players;
that the Annex D provision is no different from the 4% tariff differential which we
invalidated in Tatad; that some of the new brands, like Astro, Memphis, Capri,
L&M, Bowling Green, Forbes, and Canon, which were introduced into the market
after the effectivity of the assailed law on January 1, 1997, were killed by Annex D
brands because the former brands were reclassified by the BIR to higher tax
brackets; that the finding that price is not the only factor in the market as there are
other factors like consumer preference, active ingredients, etc. is contrary to the
evidence presented and the deliberations in Congress; that the classification freeze
provision will encourage predatory pricing in contravention of the constitutional
prohibition on unfair competition; and that the cumulative effect of the operation of
the classification freeze provision is to perpetuate the oligopoly of intervenors
Philip Morris and Fortune Tobacco in contravention of the constitutional edict for
the State to regulate or prohibit monopolies, and to disallow combinations in
restraint of trade and unfair competition.

The argument lacks merit. While previously arguing that the rational basis test was
not satisfied, petitioner now asserts that this test does not apply in this case and that
the proper matrix to evaluate the constitutionality of the assailed law is the
prohibition on unfair competition under Section 19, Article XII of the
Constitution. It should be noted that during the trial below, petitioner did not
invoke said constitutional provision as it relied solely on the alleged violation of
the equal protection and uniformity of taxation clauses. Well-settled is the rule that
points of law, theories, issues and arguments not adequately brought to the
attention of the lower court will not be ordinarily considered by a reviewing court
as they cannot be raised for the first time on appeal. [13] At any rate, even if we were
to relax this rule, as previously stated, the evidence presented before the trial court
is insufficient to establish the alleged violation of the constitutional proscription
against unfair competition.

Indeed, in Tatad we ruled that a law which imposes substantial barriers to the entry
and exit of new players in our downstream oil industry may be struck down for
being violative of Section 19, Article XII of the Constitution. [14] However, we went
on to say in that case that if they are insignificant impediments, they need not be
stricken down.[15] As we stated in our August 20, 2008 Decision, petitioner failed to
convincingly prove that there is a substantial barrier to the entry of new brands in
the cigarette market due to the classification freeze provision. We further observed
that several new brands were introduced in the market after the assailed law went
into effect thus negating petitioners sweeping claim that the classification freeze
provision is an insurmountable barrier to the entry of new brands. We also noted
that price is not the only factor affecting competition in the market for there are
other factors such as taste, brand loyalty, etc.

We see no reason to depart from these findings for the following reasons:
 First, petitioner did not lay down the factual foundations, as supported by
verifiable documentary proof, which would establish, among others, the cigarette
brands in competition with each other; the current net retail prices of Annex D
brands, as determined through a market survey, to provide a sufficient point of
comparison with those covered by the BIRs market survey of new brands; and the
causal connection with as well as the extent of the impact on the competition in the
cigarette market of the classification freeze provision. Other than petitioners self-
serving allegations and testimonial evidence, no adequate documentary evidence
was presented to substantiate its claims. Absent ample documentary proof, we
cannot accept petitioners claim that the classification freeze provision is an
insurmountable barrier to the entry of new players.

Second, we cannot lend credence to petitioners claim that it cannot produce

cigarettes that can compete with Marlboro and Philip Morris in the high-priced tax
bracket. Except for its self-serving testimonial evidence, no sufficient documentary
evidence was presented to substantiate this claim. The current net retail price,
which is the basis for determining the tax bracket of a cigarette brand, more or less
consists of the costs of raw materials, labor, advertising and profit margin. To a
large extent, these factors are controllable by the manufacturer, as such, the
decision to enter which tax bracket will depend on the pricing strategy adopted by
the individual manufacturer. The same holds true for its claims that other new
brands, like Astro, Memphis, Capri, L&M, Bowling Green, Forbes, and
Canon, were killed by Annex D brands due to the effects of the operation of
the classification freeze provision over time. The evidence that petitioner presented
before the trial court failed to substantiate the basis for these claims.

Essentially, petitioner would want us to accept its conclusions of law without

first laying down the factual foundations of its arguments. This Court, which is not
a trier of facts, cannot take judicial notice of the factual premises of these
arguments as petitioner now seems to suggest. The evidence should have been
presented before the trial court to allow it to examine and determine for itself
whether such factual premises, as supported by sufficient documentary evidence,
provide reasonable basis for petitioners conclusion that there arose an
unconstitutional unfair competition due to the operation of the classification freeze
provision. Petitioner should be reminded that it appealed this case from the adverse
ruling of the trial court directly to this Court on pure questions of law instead of
resorting to the Court of Appeals.
 Third, Tatad is not applicable to the instant case. In Tatad, we found that the
4% tariff differential between imported crude oil and imported refined petroleum
products erects a high barrier to the entry of new players because (1) it imposes an
undue burden on new players to spend billions of pesos to build refineries in order
to compete with the old players, and (2) new players, who opt not to build
refineries, suffer from the huge disadvantage of increasing their product cost by
4%.[16] The tariff was imposed on the raw materials uniformly used by the players
in the oil industry. Thus, the adverse effect on competition arising from this
discriminatory treatment was readily apparent. In contrast, the excise tax under the
assailed law is imposed based on the current net retail price of a cigarette brand. As
previously explained, the current net retail price is determined by the pricing
strategy of the manufacturer. This Court cannot simply speculate that the reason
why a new brand cannot enter a specific tax bracket and compete with the brands
therein was because of the classification freeze provision, rather than the
manufacturers own pricing decision or some other factor solely attributable to the
manufacturer. Again, the burden of proof in this regard is on petitioner which it
failed to muster.

Fourth, the finding in our August 20, 2008 Decision that price is not the only
factor which affects consumer behavior in the cigarette market is based on
petitioners own evidence. On cross-examination, petitioners witness admitted that
notwithstanding the change in price, a cigarette smoker may prefer the old brand
because of its addictive formulation.[17] As a result, even if we were to assume that
the classification freeze provision distorts the pricing scheme of the market players,
it is not clear whether a substantial barrier to the entry of new players would
thereby be created because of these other factors affecting consumer behavior.

Last, the claim that the assailed provisions encourage predatory pricing was
never raised nor substantiated before the trial court. It is merely an afterthought
and cannot be given weight.

In sum, the totality of the evidence presented by petitioner before the trial
court failed to convincingly establish the alleged violation of the constitutional
prohibition on unfair competition. It is a basic postulate that the one who
challenges the constitutionality of a law carries the heavy burden of proof for laws
enjoy a strong presumption of constitutionality as it is an act of a co-equal branch
of government. Petitioner failed to carry this burden.
The assailed law does not transgress the
constitutional provisions on regressive and
inequitable taxation.

Petitioner argues that the classification freeze provision is a form of

regressive and inequitable tax system which is proscribed under Article VI, Section
28(1)[18] of the Constitution. It claims that people in equal positions should be
treated alike. The use of different tax bases for brands under Annex D vis--vis new
brands is discriminatory, and thus, iniquitous. Petitioner further posits that
the classification freeze provision is regressive in character. It asserts that the
harmonization of revenue flow projections and ease of tax administration cannot
override this constitutional command.

We note that the points raised by petitioner with respect to alleged

inequitable taxation perpetuated by the classification freeze provision are a mere
reformulation of its equal protection challenge. As stated earlier, the assailed
provisions do not infringe the equal protection clause because the four-fold test is
satisfied. In particular, the classification freeze provision has been found to
rationally further legitimate State interests consistent with rationality
review. Petitioners repackaged argument has, therefore, no merit.

Anent the issue of regressivity, it may be conceded that the assailed law
imposes an excise tax on cigarettes which is a form of indirect tax, and thus,
regressive in character. While there was an attempt to make the imposition of the
excise tax more equitable by creating a four-tiered taxation system where higher
priced cigarettes are taxed at a higher rate, still, every consumer, whether rich or
poor, of a cigarette brand within a specific tax bracket pays the same tax rate. To
this extent, the tax does not take into account the persons ability to
pay. Nevertheless, this does not mean that the assailed law may be declared
unconstitutional for being regressive in character because the Constitution does not
prohibit the imposition of indirect taxes but merely provides that Congress shall
evolve a progressive system of taxation. As we explained in Tolentino v. Secretary
of Finance:[19]

[R]egressivity is not a negative standard for courts to enforce. What Congress is

required by the Constitution to do is to "evolve a progressive system of taxation."
This is a directive to Congress, just like the directive to it to give priority to the
enactment of laws for the enhancement of human dignity and the reduction of
social, economic and political inequalities [Art. XIII, Section 1] or for the
promotion of the right to "quality education" [Art. XIV, Section 1]. These
 provisions are put in the Constitution as moral incentives to legislation, not as
judicially enforceable rights.[20]

Petitioner is not entitled to a downward

reclassification of Lucky Strike.

Petitioner alleges that assuming the assailed law is constitutional, its Lucky
Strike brand should be reclassified from the premium-priced to the high-priced tax
bracket. Relying on BIR Ruling No. 018-2001 dated May 10, 2001, it claims that it
timely sought redress from the BIR to have the market survey conducted within
three months from product launch, as provided for under Section 4(B) [21] of
Revenue Regulations No. 1-97, in order to determine the actual current net retail
price of Lucky Strike, and thus, fix its tax classification. Further, the upward
reclassification of Lucky Strike amounts to deprivation of property right without
due process of law. The conduct of the market survey after two years from product
launch constitutes gross neglect on the part of the BIR. Consequently, for failure of
the BIR to conduct a timely market survey, Lucky Strikes classification based on
its suggested gross retail price should be deemed its official tax classification.
Finally, petitioner asserts that had the market survey been timely conducted
sometime in 2001, the current net retail price of Lucky Strike would have been
found to be under the high-priced tax bracket.

These contentions are untenable and misleading.

First, BIR Ruling No. 018-2001 was requested by petitioner for the purpose
of fixing Lucky Strikes initial tax classification based on its suggested gross retail
price relative to its planned introduction of Lucky Strike in the market sometime in
2001 and not for the conduct of the market survey within three months from
product launch. In fact, the said Ruling contained an express reservation that the
tax classification of Lucky Strike set therein is without prejudice, however, to the
subsequent conduct of a survey x x x in order to determine if the actual gross retail
price thereof is consistent with [petitioners] suggested gross retail price.[22] In short,
petitioner acknowledged that the initial tax classification of Lucky Strike may be
modified depending on the outcome of the survey which will determine the actual
current net retail price of Lucky Strike in the market.

Second, there was no upward reclassification of Lucky Strike because it was

taxed based on its suggested gross retail price from the time of its introduction in
the market in 2001 until the BIR market survey in 2003. We reiterate that Lucky
Strikes actual current net retail price was surveyed for the first time in 2003 and
was found to be from P10.34 to P11.53 per pack, which is within the premium-
priced tax bracket. There was, thus, no prohibited upward reclassification of Lucky
Strike by the BIR based on its current net retail price.

Third, the failure of the BIR to conduct the market survey within the three-
month period under the revenue regulations then in force can in no way make the
initial tax classification of Lucky Strike based on its suggested gross retail price
permanent. Otherwise, this would contravene the clear mandate of the law which
provides that the basis for the tax classification of a new brand shall be the current
net retail price and not the suggested gross retail price. It is a basic principle of law
that the State cannot be estopped by the mistakes of its agents.

Last, the issue of timeliness of the market survey was never raised before the
trial court because petitioners theory of the case was wholly anchored on the
alleged unconstitutionality of the classification freeze provision. As a consequence,
no documentary evidence as to the actual net retail price of Lucky Strike in 2001,
based on a market survey at least comparable to the one mandated by law, was
presented before the trial court. Evidently, it cannot be assumed that had the BIR
conducted the market survey within three months from its product launch
sometime in 2001, Lucky Strike would have been found to fall under the high-
priced tax bracket and not the premium-priced tax bracket. To so hold would run
roughshod over the States right to due process. Verily, petitioner prosecuted its
case before the trial court solely on the theory that the assailed law is
unconstitutional instead of merely challenging the timeliness of the market
survey. The rule is that a party is bound by the theory he adopts and by the cause of
action he stands on. He cannot be permitted after having lost thereon to repudiate
his theory and cause of action, and thereafter, adopt another and seek to re-litigate
the matter anew either in the same forum or on appeal. [23] Having pursued one
theory and lost thereon, petitioner may no longer pursue another inconsistent
theory without thereby trifling with court processes and burdening the courts with
endless litigation.

WHEREFORE, the motion for reconsideration is DENIED.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila

EN BANC

PHARMACEUTICAL and HEALTH G.R. NO. 173034

CARE ASSOCIATION of the
PHILIPPINES,
Petitioner,
Present:

PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
HEALTH SECRETARY
FRANCISCO T. DUQUE III;
HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA,
& DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE,
DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO, Promulgated:
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for
an infant is mother's milk. There is nothing greater than for a mother to nurture her
beloved child straight from her bosom. The ideal is, of course, for each and every
Filipino child to enjoy the unequaled benefits of breastmilk. But how should this
end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise
Known as The Milk Code, Relevant International Agreements, Penalizing
Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the
RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant

Secretaries of the Department of Health (DOH). For purposes of herein petition,
the DOH is deemed impleaded as a co-respondent since respondents issued the
questioned RIRR in their capacity as officials of said executive agency.[1]

Executive Order No. 51 (Milk Code) was issued by President

Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to
the president under the Freedom Constitution. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Article 11[2] of the International
Code of Marketing of BreastmilkSubstitutes (ICMBS), a code adopted by the
World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted
several Resolutions to the effect that breastfeeding should be supported, promoted
and protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the advantages
of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and in violation of the provisions of the
Constitution in promulgating the RIRR.[3]

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised

Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive
Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by

the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the affirmative,
whether the RIRR is in accord with the international agreements;
 2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the
due process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient

standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002 Global Strategy on Infant and Young
Child Feeding; and (3) various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real
party-in-interest, the Court adopts the view enunciated in Executive Secretary v.
Court ofAppeals,[4] to wit:
The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing to file
suit for its workers despite its lack of direct interest if its members
are affected by the action. An organization has standing to assert the
concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent

was organized x x x to act as the representative of any individual,
company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to
accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and
its members are in every practical sense
identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective
the expression of their voices and the redress of their
grievances. [5] (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where
the Court ruled that an association has the legal personality to represent its
members because the results of the case will affect their vital interests.[7]

Herein petitioner's Amended Articles of Incorporation contains a similar provision

just like in Executive Secretary, that the association is formed to represent directly
or through approved representatives the pharmaceutical and health care industry
before the Philippine Government and any of its agencies, the medical professions
and the general public.[8]Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing members who are part of
the pharmaceutical and health care industry.Petitioner is duly authorized [9] to take
the appropriate course of action to bring to the attention of government agencies
and the courts any grievance suffered by its members which are directly affected
by the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if it fails
to act on governmental action that would affect any of its industry members, no
matter how few or numerous they are. Hence, petitioner, whose legal identity is
deemed fused with its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by

respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk
Code, thereby amending and expanding the coverage of said law. The defense of
the DOH is that the RIRR implements not only the Milk Code but also various
international instruments[10] regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the law
of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic, Social and Cultural Rights;
and (3) the Convention on the Elimination of All Forms of Discrimination Against
Women, only provide in general terms that steps must be taken by State Parties to
diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women
are provided with services and nutrition in connection with pregnancy and
lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation.[11] The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.[12]

Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that [n]o treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate. Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to
be transformed into municipal law that can be applied to domestic conflicts.[13]

The ICMBS and WHA Resolutions are not treaties as they have not been concurred
in by at least two-thirds of all members of the Senate as required under Section 21,
Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk
Code. Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials
may be allowed if such materials are duly authorized and approved by the
Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. 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. (Emphasis
supplied)

embodies the incorporation method.[14]

In Mijares v. Ranada,[15] the Court held thus:

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted
as binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the part of States;
and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity).
Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it.
[16]
(Emphasis supplied)
Generally accepted principles of international law refers to norms of general or
customary international law which are binding on all states, [17] i.e., renunciation of
war as an instrument of national policy, the principle of sovereign immunity,[18] a
person's right to life, liberty and due process, [19] and pacta sunt servanda,[20] among
others. The concept of generally accepted principles of law has also been depicted
in this wise:
 Some legal scholars and judges look upon certain general principles of
law as a primary source of international law because they have the
character of jus rationale and are valid through all kinds of human
societies. (Judge Tanaka in his dissenting opinion in the 1966 South West
Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are
part of international law because they are basic to legal systems
generally and hence part of the jus gentium. These principles, he
believes, are established by a process of reasoning based on the common
identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x [21](Emphasis
supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means a general and

consistent practice of states followed by them from a sense of legal
obligation [opinio juris]. (Restatement) This statement contains the
two basic elements of custom: the material factor, that is, how states
behave, and the psychological or subjective factor, that is, why they
behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration, consistency,
and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is

the consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes

necessary to determine why states behave the way they do. Do states
behave the way they do because they consider it obligatory to behave
 thus or do they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not law.
[22]
(Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic

system.[23]

WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary law and should they then be deemed incorporated
as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized

agencies allied with the United Nations (UN) by virtue of Article 57, [24] in relation
to Article 63[25] of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,[26] and has the power to adopt
regulations concerning advertising and labeling of biological, pharmaceutical and
similar products moving in international commerce,[27] and to make
recommendations to members with respect to any matter within the competence of
the Organization.[28] The legal effect of its regulations, as opposed to
recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the

WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt

conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when
accepted by it in accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen

months after the adoption by the Health Assembly of a convention or
agreement, take action relative to the acceptance of such convention
or agreement. Each Member shall notify the Director-General of the
action taken, and if it does not accept such convention or agreement
within the time limit, it will furnish a statement of the reasons for non-
 acceptance. In case of acceptance, each Member agrees to make an
annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt

regulations concerning: (a) sanitary and quarantine requirements and
other procedures designed to prevent the international spread of disease;
(b) nomenclatures with respect to diseases, causes of death and public
health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and
potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological,
pharmaceutical and similar products moving in international
commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into

force for all Members after due notice has been given of their adoption
by the Health Assembly except for such Members as may notify the
Director-General of rejection or reservations within the period stated
in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not
come into force for members, in the same way that conventions or agreements
under Article 19 and regulations under Article 21 come into force. Article 23 of
the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make

recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the

recommendation would come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they carry moral and political
weight, as they constitute the judgment on a health issue of the collective
membership of the highest international body in the field of health. [29] Even the
ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:
 The Thirty-Fourth World Health Assembly x x x adopts, in the sense of
Article 23 of the Constitution, the International Code of Marketing
of Breastmilk Substitutes annexed to the present resolution. (Emphasis
supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization

at its sixty-seventh session, considered the fourth draft of the code,
endorsed it, and unanimously recommended to the Thirty-fourth World
Health Assembly the text of a resolution by which it would adopt the
code in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article

62 of the WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with
respect to recommendations made to it by the Organization, and with
respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done with
the ICMBS whereby the legislature enacted most of the provisions into law
which is the Milk Code, the subsequent WHA Resolutions, [30] specifically
providing for exclusive breastfeeding from 0-6 months, continued
breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic
law.

It is propounded that WHA Resolutions may constitute soft law or non-binding

norms, principles and practices that influence state behavior.[31]
Soft law does not fall into any of the categories of international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice. [32] It
is, however, an expression of non-binding norms, principles, and practices that
influence state behavior.[33] Certain declarations and resolutions of the UN General
Assembly fall under this category.[34] The most notable is the UN Declaration of
Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v. Olalia,
[35]
Mejoff v. Director of Prisons,[36] Mijares v. Raada[37] and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..[38]

The World Intellectual Property Organization (WIPO), a specialized agency

attached to the UN with the mandate to promote and protect intellectual property
worldwide, has resorted to soft law as a rapid means of norm creation, in order to
reflect and respond to the changing needs and demands of its constituents. [39] Other
international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in
the form of the Codex Alimentarius).[40]

WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law
binding on WHO member states, it provides an excellent example of
the power of "soft law" in international relations. International
lawyers typically distinguish binding rules of international law-"hard
law"-from non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international
governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in
laying the political groundwork for improved international cooperation
on infectious diseases. These resolutions clearly define WHO member
states' normative duty to cooperate fully with other countries and
with WHO in connection with infectious disease surveillance and
response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS
 outbreak has taught the lesson that participating in, and enhancing, international
cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could
inform the development of general and consistent state practice on infectious
disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.[41]

In the Philippines, the executive department implemented certain measures

recommended by WHO to address the outbreaks of SARS and Avian flu by issuing
Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February
2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban
importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of
a state to implement the IHR Resolution was still considered not binding or
enforceable, although said resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary

law, it must be established that such rule is being followed by
states because they consider it obligatory to comply with such rules
(opinio juris). Respondents have not presented any evidence to prove that the
WHA Resolutions, although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states; neither have
respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions

are customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA

Resolutions into domestic law. The provisions of the WHA Resolutions cannot
be considered as part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions
of the WHA Resolutions by virtue of its powers and functions under the Revised
Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides

that the DOH shall define the national health policy and implement a national
health plan within the framework of the government's general policies and plans,
and issue orders and regulations concerning the implementation of established
health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other

forms of promotion of breastmilk substitutes provided in some WHA Resolutions
has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the
Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years and
beyond; (2) appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
exercise of other feeding options; and (6) feeding in exceptionally difficult
circumstances. Indeed, the primacy of breastfeeding for children is emphasized as
a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared
that as part of such health policy, the advertisement or promotion
of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot

automatically be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on
the advertising and promotion of breastmilk substitutes, but instead, specifically
creates an IAC which will regulate said advertising and promotion, it follows that a
total ban policy could be implemented only pursuant to a law amending the Milk
Code passed by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in
accordance with those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner
alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the
RIRR extended its coverage to young children or those from ages two
years old and beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe
and adequate nutrition for infants is
provided, there is a need to protect and
promote breastfeeding and to inform the
public about the proper use
of breastmilk substitutes and
supplements and related products
through adequate, consistent and
objective information and appropriate
regulation of the marketing and
distribution of the said substitutes,
supplements and related products;
Section 2. Purpose These Revised Rules and
Regulations are hereby promulgated to ensure
the provision of safe and adequate
nutrition for infants and young children by the
promotion, protection and support of
breastfeeding and by ensuring the proper use
of breastmilk substitutes, breastmilksuppleme
nts and related products when these are
medically indicated and only when necessary,
on the basis of adequate information and
through appropriate marketing and
distribution.

SECTION 4(e). Infant means a person Section 5(ff). Young Child means a person
falling within the age bracket of 0-12 from the age of more than twelve (12) months
months. up to the age of three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and
possible substitute for breastmilk in certain instances; but the RIRR
provides exclusive breastfeeding for infants from 0-6 months and declares
that there is no substitute nor replacement for breastmilk:

MILK CODE RIRR

WHEREAS, in order to ensure that safe Section 4. Declaration of Principles The
and adequate nutrition for infants is following are the underlying principles
provided, there is a need to protect and from which the revised rules and
promote breastfeeding and to inform the regulations are premised upon:
public about the proper use
of breastmilk substitutes and supplements a. Exclusive breastfeeding is for
and related products through adequate, infants from 0 to six (6) months.
consistent and objective information and
appropriate regulation of the marketing and b. There is no substitute or
distribution of the said substitutes, replacement for breastmilk.
supplements and related products;

3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an absolute
ban on such activities for breastmilk substitutes intended for infants from
0-24 months old or beyond, and forbids the use of health and nutritional
claims. Section 13 of the RIRR, which provides for a total effect in the
promotion of products within the scope of the Code, is vague:

MILK CODE RIRR

SECTION 6. The General Public and
Mothers.
(a) No advertising, promotion or other
marketing materials, whether written, audio
or visual, for products within the scope of
this Code shall be printed, published,
distributed, exhibited and broadcast unless
such materials are duly authorized and
approved by an inter-agency
committee created herein pursuant to the
applicable standards provided for in this
Code.
Section 4. Declaration of Principles The
following are the underlying principles
from which the revised rules and
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-
ships of infant
formula, breastmilk substitutes and other
related products are prohibited.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and
activities for breastmilk substitutes
intended for infants and young children up
to twenty-four (24) months, shall be
allowed, because they tend to convey or
give subliminal messages or impressions
that undermine breastmilk and
breastfeeding or otherwise
exaggerate breastmilk substitutes and/or
replacements, as well as related products
covered within the scope of this Code.

Section 13. Total Effect - Promotion of

products within the scope of this Code must
be objective and should not equate or make
the product appear to be as good or equal
to breastmilk or breastfeeding in the
advertising concept. It must not in any case
undermine breastmilk or breastfeeding. The
total effect should not directly or indirectly
suggest that buying their product would
produce better individuals, or resulting in
greater love, intelligence, ability, harmony
or in any manner bring better health to the
baby or other such exaggerated and
unsubstantiated claim.

Section 15. Content of Materials. - The

following shall not be included in
advertising, promotional and marketing
materials:

a. Texts, pictures, illustrations or

information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilksubstitutes and milk
supplements. In this connection, no pictures
of babies and children together with their
mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall
be used in any advertisements for infant
formula and breastmilk supplements;
b. The term humanized, maternalized, close
to mother's milk or similar words in
describing breastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the use of

infant and milk formula.

Section 16. All health and nutrition claims

for products within the scope of the Code
are absolutely prohibited. For this purpose,
any phrase or words that connotes to
increase emotional, intellectual abilities of
the infant and young child and other like
phrases shall not be allowed.
 4. The RIRR imposes additional labeling requirements not found in the Milk
Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate
use of the products, and in such a
way as not to discourage
breastfeeding.
(b) Each container shall have a clear,
conspicuous and easily readable
and understandable message in
Pilipino or English printed on it, or
on a label, which message can not
readily become separated from it,
and which shall include the
following points:
(i) the words Important Notice or
their equivalent;
(ii) a statement of the superiority
of breastfeeding;
(iii) a statement that the product
shall be used only on the advice of
a health worker as to the need for
its use and the proper methods of
use;and
(iv) instructions for appropriate
preparation, and a warning against
the health hazards of inappropriate
preparation.
5. The Milk Code allows dissemination of information on infant formula to
health professionals; the RIRR totally prohibits such activity:
MILK CODE
SECTION 7. Health Care System.
(b) No facility of the health care system
shall be used for the purpose of promoting
infant formula or other products within the
scope of this Code. This Code does not,
however, preclude the dissemination of
RIRR
Section 26. Content Each container/label
shall contain such message, in both Filipino
and English languages, and which message
cannot be readily separated therefrom,
relative the following points:
(a) The words or phrase Important Notice
or Government Warning or their
equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no substitute
for breastmilk;
(d) A statement that the product shall be
used only on the advice of a health
worker as to the need for its use and
the proper methods of use;
(e) Instructions for appropriate prepara-tion,
and a warning against the health
hazards of inappropriate
preparation;and
(f) The health hazards of unnecessary or
improper use of infant formula and
other related products including
information that powdered infant
formula may contain pathogenic
microorganisms and must be
prepared and used appropriately.
RIRR
Section 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and
information to health professionals as Communication (IEC) materials on
provided in Section 8(b). breastfeeding, holding of or participating as
speakers in classes or seminars for women
SECTION 8. Health Workers. - and children activities and to avoid the use
(b) Information provided by manufacturers of these venues to market their brands or
and distributors to health professionals company names.
regarding products within the scope of this
Code shall be restricted to scientific and SECTION 16. All health and nutrition
factual matters and such information shall claims for products within the scope of the
not imply or create a belief that bottle- Code are absolutely prohibited. For this
feeding is equivalent or superior to purpose, any phrase or words that
breastfeeding. It shall also include the connotes to increase emotional, intellectual
information specified in Section 5(b). abilities of the infant and young child and
other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend

assistance in research and continuing education of health professionals;
RIRR absolutely forbids the same.

MILK CODE RIRR

SECTION 8. Health Workers
(e) Manufacturers and distributors of
products within the scope of this Code may
assist in the research, scholarships and
continuing education, of health
professionals,in accordance with the rules
and regulations promulgated by the
Ministry of Health.
Section 4. Declaration of Principles
The following are the underlying principles
from which the revised rules and
regulations are premised upon:
i. Milk companies, and their
representatives, should not form
part of any policymaking body or
entity in relation to the advancement
of breasfeeding.

SECTION 22. No manufacturer,

distributor, or representatives of products
covered by the Code shall be allowed to
conduct or be involved in any activity on
breastfeeding promotion, education and
production of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or participating as
speakers in classes or seminars for women
and children activities and to avoid the use
of these venues to market their brands or
company names.

SECTION 32. Primary Responsibility of

Health Workers - It is the primary
 responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely

prohibits it.

MILK CODE RIRR

SECTION 6. The General Public and Section 51. Donations Within the Scope
Mothers. of This Code - Donations of products,
(f) Nothing herein contained shall prevent materials, defined and covered under the
donations from manufacturers and Milk Code and these implementing rules
distributors of products within the scope of and regulations, shall be strictly prohibited.
this Code upon request by or with the
approval of the Ministry of Health. Section 52. Other Donations By Milk
Companies Not Covered by this Code. -
Donations of products, equipments, and the
like, not otherwise falling within the scope
of this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency
Committee (IAC), which shall determine
whether such donation be accepted or
otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk
Code.

MILK CODE RIRR

Section 46. Administrative
Sanctions. The following administrative
sanctions shall be imposed upon any
person, juridical or natural, found to have
violated the provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum of Ten Thousand
 (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on
the gravity and extent of the
violation, including the recall of the
offending product;
rd
c) 3 violation Administrative Fine of a
minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);
d) 4th violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and extent
of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension of
the License to Operate (LTO) for
one year;
th
e) 5 and succeeding repeated violations
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of
the offending product, cancellation of
the CPR, revocation of the License to
Operate (LTO) of the company
concerned, including the blacklisting
of the company to be furnished the
Department of Budget and
Management (DBM) and the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per
day shall be made for every day the
violation continues after having
received the order from the IAC or
other such appropriate body,
notifying and penalizing the
company for the infraction.
For purposes of determining whether or not
there is repeated violation, each product
 violation belonging or owned by a
company, including those of their
subsidiaries, are deemed to be violations of
the concerned milk company and shall not
be based on the specific violating product
alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is

limited only to children 0-12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of the following
products: breastmilk substitutes, including infant formula; other milk
products, foods and beverages, including bottle-fed complementary
foods, when marketed or otherwise represented to be suitable, with or
without modification, for use as a partial or total replacement
of breastmilk; feeding bottles and teats. It also applies to their quality
and availability, and to information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but
on the kind of product being marketed to the public. The law treats infant
formula, bottle-fed complementary food, and breastmilk substitute as separate and
distinct product categories.

Section 4(h) of the Milk Code defines infant formula

as a breastmilk substitute x x x to satisfy the normal nutritional requirements
of infants up to between four to six months of age, and adapted to their
physiological characteristics; while under Section 4(b), bottle-fed complementary
food refers to any food, whether manufactured or locally prepared, suitable as a
complement to breastmilk or infant formula, when either becomes insufficient to
satisfy the nutritional requirements of the infant. An infant under Section 4(e) is a
person falling within the age bracket 0-12 months. It is the nourishment of this
group of infants or children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under

Section 4(a) as any food being marketed or otherwise presented as a partial or total
replacement for breastmilk, whether or not suitable for that purpose. This section
conspicuously lacks reference to any particular age-group of children. Hence,
the provision of the Milk Code cannot be considered exclusive for children
aged 0-12 months. In other words, breastmilk substitutes may also be intended for
young children more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the nourishment
of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the
Milk Code as provided in Section 3, then it can be subject to regulation pursuant to
said law, even if the product is to be used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 2[42] and 5(ff)[43] of
the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk
Code, does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must
be considered and construed together. As held in De Luna v. Pascual,[44] [t]he
particular words, clauses and phrases in the Rule should not be studied as detached
and isolated expressions, but the whole and every part thereof must be considered
in fixing the meaning of any of its parts and in order to produce a harmonious
whole.
Section 7 of the RIRR provides that when medically indicated and only
when necessary, the use of breastmilk substitutes is proper if based on complete
and updated information. Section 8 of the RIRR also states that information and
educational materials should include information on the proper use of infant
formula when the use thereof is needed.
 Hence, the RIRR, just like the Milk Code, also recognizes that in certain
cases, the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 3 [45] and

4[46] together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising

regulations under the RIRR are valid, it is important to deal first with the nature,
purpose, and depth of the regulatory powers of the DOH, as defined in general
under the 1987 Administrative Code,[47] and as delegated in particular under the
Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain
other administrative agencies) in exercise of police powers delegated to it. The
sheer span of jurisprudence on that matter precludes the need to further discuss it. .
[48]
However, health information, particularly advertising materials on apparently
non-toxic products like breastmilk substitutes and supplements, is a relatively new
area for regulation by the DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine Islands,
[50]
health information was already within the ambit of the regulatory powers of the
predecessor of DOH.[51] Section 938 thereof charged it with the duty to protect the
health of the people, and vested it with such powers as (g) the dissemination of
hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and
combating dangerous communicable diseases.

Seventy years later, the 1987 Administrative Code tasked respondent DOH
to carry out the state policy pronounced under Section 15, Article II of the 1987
Constitution, which is to protect and promote the right to health of the people
and instill health consciousness among them.[52] To that end, it was granted under
Section 3 of the Administrative Code the power to (6) propagate health
information and educate the population on important health, medical and
environmental matters which have health implications.[53]

When it comes to information regarding nutrition of infants and young

children, however, the Milk Code specifically delegated to the Ministry of Health
(hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use
of breastmilk substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in Sections 12 and
5(a), to wit:

SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be principally responsible for the

implementation and enforcement of the provisions of this Code.
For this purpose, the Ministry of Health shall have the following
powers and functions:

(1) To promulgate such rules and regulations as are necessary or

proper for the implementation of this Code and the
accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may be

necessary for or incidental to the attainment of the purposes and
objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and

consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--vis breastmilk substitutes, supplement and related
products, in the following manner:
SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or

visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
 information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and (5)
where needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula,
they shall include the social and financial implications of its
use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use
of breastmilk substitutes.

SECTION 8. Health Workers

xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters, and
such information shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a
way as not to discourage breastfeeding.

xxxx

(d) The term humanized, maternalized or similar terms shall not be

used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to
whom such information may be disseminated under Sections 6 through 9 of the
Milk Code[54]to ensure that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in the health care system
is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally
indicate that the control over information given to the DOH is not absolute and that
absolute prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing

and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to

contribute to the provision of safe and adequate nutrition for infants by
the protection and promotion of breastfeeding and by ensuring the proper
use of breastmilk substitutes and breastmilk supplements when these are
necessary, on the basis of adequate information and through appropriate
marketing and distribution.

b) Section 3 which specifically states that the Code applies to the marketing
of and practices related to breastmilk substitutes, including infant formula, and to
information concerning their use;

c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational

and educational materials shall not use any picture or text which may idealize the
use of breastmilk substitutes and should include information on the health hazards
of unnecessary or improper use of said product;
 e) Section 6(a) in relation to Section 12(a) which creates and empowers the
IAC to review and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to
health professionals but such information should be restricted to factual and
scientific matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain

information that would discourage breastfeeding and idealize the use of infant
formula.

It is in this context that the Court now examines the assailed provisions of
the RIRR regarding labeling and advertising.

Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain
some labeling requirements, specifically: a) that there be a statement that there is
no substitute to breastmilk; and b) that there be a statement that powdered infant
formula may contain pathogenic microorganisms and must be prepared and used
appropriately. Section 16[57]of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased emotional
and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of

Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -

xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, andsuch
information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.[58] (Emphasissupplied)
and Section 10(d)[59] which bars the use on containers and labels of the terms
humanized, maternalized, or similar terms.

These provisions of the Milk Code expressly forbid information that would imply
or create a belief that there is any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be inconsistent with the
superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given
to health workers regarding breastmilk substitutes, not to containers and labels
thereof.However, such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are forbidden to claim to
health workers that their products are substitutes or equivalents of breastmilk, and
yet be allowed to display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk Code is precisely what
Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk vis-a-vis breastmilk substitutes beconsistent, at the same time giving the
government control over planning, provision, design, and dissemination of
information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that
the product offered is not a substitute for breastmilk, is a reasonable means of
enforcing Section 8(b) of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in Section 2 [60] of the Milk
Code.

Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It

implements Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or

visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: x x x (5) where needed,
the proper use of infant formula, whether manufactured
 industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall
not use any picture or text which may idealize the use of
breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the
buyers thereof. The buyers of breastmilk substitutes are mothers of infants,
and Section 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related
products when these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula
milk is prone to contaminations and there is as yet no technology that allows
production of powdered infant formula that eliminates all forms of contamination.
[62]

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section 5(b)
of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-

vis breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether

written, audio or visual, for products within the scope of this Code shall
be printed, published, distributed, exhibited and broadcast unless such
materials are duly authorized and approved by an inter-agency
 committee created herein pursuant to the applicable standards provided
for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee

composed of the following members is hereby created:

Minister of Health -------------------------------------------- Chairman

Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member

The members may designate their duly authorized representative to

every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other

marketing materials, whether written, audio or visual, on products
within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from

and prohibit the printing, publication, distribution, exhibition and
broadcast of, all advertising promotion or other marketing
materials, whether written, audio or visual, on products within the
scope of this Code;
(3) To prescribe the internal and operational procedure for the
exercise of its powers and functions as well as the performance of
its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary

or proper for the implementation of Section 6(a) of this
Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

 SECTION 11. Prohibition No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes intended for
infants and young children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or otherwise
exaggerate breastmilksubstitutes and/or replacements, as well as related
products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and

activities for breastmilk substitutes in line with the RIRRs declaration of principle
under Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant

formula, breastmilk substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk
Code in Section 6 thereof for prior approval by IAC of all advertising, marketing
and promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is

whether or not there is an absolute prohibition on advertising making AO
2006-12 unconstitutional. We maintained that what AO 2006-12 provides
is not an absolute prohibition because Section 11 while it states and it is
entitled prohibition it states that no advertising, promotion, sponsorship
or marketing materials and activities for breast milk substitutes intended
for infants and young children up to 24 months shall be allowed because
this is the standard they tend to convey or give subliminal messages or
impression undermine that breastmilk or breastfeeding x x x.

We have to read Section 11 together with the other Sections because the
other Section, Section 12, provides for the inter agency committee that is
empowered to process and evaluate all the advertising and promotion
materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and
manufacture, it simply regulates the advertisement and the promotions of
breastfeeding milk substitutes.
xxxx

Now, the prohibition on advertising, Your Honor, must be taken together

with the provision on the Inter-Agency Committee that processes and
evaluates because there may be some information dissemination that are
straight forward information dissemination. What the AO 2006 is trying
to prevent is any material that will undermine the practice of
breastfeeding, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has
authority or power to promulgate Rules and Regulations regarding the
Advertising, Promotion and Marketing of Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency

Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule
making authority when it totally banned advertising and promotion under
Section 11 prescribed the total effect rule as well as the content of
materials under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total
absolute ban. Second, the Inter-Agency Committee is under the
Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute

ban on advertising of breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on

advertising of breastmilk substitutes intended for children two (2) years
old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional
materials, subject to the standards that we have stated earlier, which are-
they should not undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation

with the other Sections, particularly 12 and 13 and 15, Your Honor,
because it is recognized that the Inter-Agency Committee has that power
to evaluate promotional materials, Your Honor.
 ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on

advertisement regarding milk substitute regarding infants two (2) years
below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition,
however, we take exceptions and standards have been set. One of which
is that, the Inter-Agency Committee can allow if the advertising and
promotions will not undermine breastmilk and breastfeeding, Your
Honor.[63]

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and

regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the rules and regulations
must be pursuant to the applicable standards provided for in this Code. Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk
of being repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx

(b) Informational and educational materials, whether written,

audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include
clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding;(3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health
 hazards of inappropriate foods of feeding methods; and, in
particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials
shall not use any picture or text which may idealize the use
of breastmilk substitutes.
xxxx

SECTION 8. Health Workers.

xxxx
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual mattersand such
information shall not imply or create a belief that bottle feeding is
equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a way
as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable
and understandable message in Pilipino or English printed on it, or on a
label, which message can not readily become separated from it, and
which shall include the following points:

(i) the words Important Notice or their equivalent;

(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a
health worker as to the need for its use and the proper methods of
use; and
(iv) instructions for appropriate preparation, and a warning against the
health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as
the principal implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code
states that:
SECTION 5. Information and Education
 (a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational
terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by
which the IAC shall screen advertising, promotional, or other marketing
materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13
in the RIRR which reads as follows:

SECTION 13. Total Effect - Promotion of products within the scope of

this Code must be objective and should not equate or make the product
appear to be as good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine breastmilk or
breastfeeding. The total effect should not directly or indirectly suggest
that buying their product would produce better individuals, or resulting
in greater love, intelligence, ability, harmony or in any manner bring
better health to the baby or other such exaggerated and unsubstantiated
claim.

Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing. Through that single provision, the DOH
exercises control over the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements
and other related products. It also sets a viable standard against which the IAC may
screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the

following: public interest, justice and equity, public convenience and
welfare, and simplicity, economy and welfare. [65]
 In this case, correct information as to infant feeding and nutrition is infused
with public interest and welfare.

4. With regard to activities for dissemination of information to health

professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)[66] of the Milk Code, in
relation to Section 8(b)[67] of the same Code, allows dissemination of
information to health professionals but such information is restricted to scientific
and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit

the giving of information to health professionals on scientific and factual
matters. What it prohibits is the involvement of the manufacturer and distributor
of the products covered by the Code in activities for the promotion, education and
production of Information, Education and Communication (IEC) materials
regarding breastfeeding that are intended for women and children. Said
provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e) [68] of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Sections 22 and 32 of the RIRR
absolutely forbid the same. Petitioner also assails Section 4(i)[69] of the RIRR
prohibiting milk manufacturers' and distributors' participation in any policymaking
body in relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it
is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to bepart of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation
in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits

milk companies from giving reasearch assistance and continuing education to
health professionals. Section 22[70] of the RIRR does not pertain to research
assistance to or the continuing education of health professionals; rather, it deals
with breastfeeding promotion and education for women and children. Nothing in
Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's
argument against this particular provision must be struck down.

It is Sections 9[71] and 10[72] of the RIRR which govern research

assistance. Said sections of the RIRR provide that research assistance for health
workers and researchers may be allowed upon approval of an ethics
committee, and with certain disclosure requirements imposed on the milk
company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such
research or educational assistance may be given by milk companies or under what
conditions health workers may accept the assistance. Thus, Sections 9 and 10 of
the RIRR imposing limitations on the kind of research done or extent of assistance
given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 32 [73] of the RIRR prohibits milk

companies from giving assistance, support, logistics or training to health
workers. This provision is within the prerogative given to the DOH under Section
8(e)[74] of the Milk Code, which provides that manufacturers and distributors
of breastmilk substitutes may assist in researches, scholarships and the continuing
education, of health professionals in accordance with the rules and regulations
promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also

consistent with the Milk Code. Section 6(f) of the Milk Code provides that
donations may be made by manufacturers and distributors
of breastmilk substitutes upon the request or with the approval of the DOH. The
law does not proscribe the refusal of donations. The Milk Code leaves it purely to
the discretion of the DOH whether to request or accept such donations. The DOH
then appropriately exercised its discretion through Section 51[75] of the RIRR which
sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of
the RIRR that any donation from milk companies not covered by the Code should
be coursed through the IAC which shall determine whether such donation should
be accepted or refused. As reasoned out by respondents, the DOH is not mandated
by the Milk Code to accept donations. For that matter, no person or entity can be
forced to accept a donation. There is, therefore, no real inconsistency between the
RIRR and the law because the Milk Code does not prohibit the DOH from refusing
donations.

7. With regard to Section 46 of the RIRR providing for administrative

sanctions that are not found in the Milk Code, the Court upholds petitioner's
objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines,

[76]
Inc. is misplaced. The glaring difference in said case and the present case before
the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics
Administration (CAA) was expressly granted by the law (R.A. No. 776) the
power to impose fines and civil penalties, while the Civil Aeronautics Board
(CAB) was granted by the same law the power to review on appeal the order or
decision of the CAA and to determine whether to impose, remit, mitigate, increase
or compromise such fine and civil penalties. Thus, the Court upheld the CAB's
Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines,

[77]
Inc., the Court upheld the Department of Energy (DOE) Circular No. 2000-06-
10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines
for the commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33
and R.A. No. 7638 to impose fines or penalties.
 In the present case, neither the Milk Code nor the Revised Administrative
Code grants the DOH the authority to fix or impose administrative fines. Thus,
without any express grant of power to fix or impose such fines, the DOH cannot
provide for those fines in the RIRR. In this regard, the DOH again exceeded its
authority by providing for such fines or sanctions in Section 46 of the RIRR. Said
provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code authorizes the DOH to cause the prosecution of
the violators of this Code and other pertinent laws on products covered by this
Code. Section 13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:

SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the
rules and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to one (1) year
imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the
offense be committed by a juridical person, the chairman of the Board of
Directors, the president, general manager, or the partners and/or the
persons directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government

agency to any health worker, distributor, manufacturer, or marketing firm
or personnel for the practice of their profession or occupation, or for the
pursuit of their business, may, upon recommendation of the Ministry of
Health, be suspended or revoked in the event of repeated violations of
this Code, or of the rules and regulations issued pursuant to this
Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are
contrary to the RIRR is frivolous.
Section 57 reads:
 SECTION 57. Repealing Clause - All orders, issuances, and rules and
regulations or parts thereof inconsistent with these revised rules and
implementing regulations are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations. Thus, said provision is valid as it is within
the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-

making power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability of
powers.[78] Such express grant of rule-making power necessarily includes the power
to amend, revise, alter, or repeal the same. [79] This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which
they are to implement the provisions of a law,[80] in order to make it more
responsive to the times. Hence, it is a standard provision in administrative rules
that prior issuances of administrative agencies that are inconsistent therewith are
declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the
DOH to promulgate and in contravention of the Milk Code and, therefore, null and
void. The rest of the provisions of the RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the

Respondents is unnecessary and oppressive, and is offensive to the
due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to
provide the public with a comprehensible basis to determine whether or
not they have committed a violation. [81](Emphasis supplied)

Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and
52[89] as the provisions that suppress the trade of milk and, thus, violate the due
process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to
some form of regulation for the public good. Public interest must be upheld over
business interests.[90] In Pest Management Association of the Philippines v.
Fertilizer and Pesticide Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut
Desiccators v. Philippine Coconut Authority, despite the fact that our
present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare. There can be no
question that the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case, the Court
declared that free enterprise does not call for removal of protective
regulations. xx x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation
would result in the restraint of trade. [Emphasis and underscoring
supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for
women and children (Section 22); the giving of assistance, support and logistics or
training (Section 32); and the giving of donations (Section 52) would unreasonably
hamper the trade ofbreastmilk substitutes. Petitioner has not established that the
proscribed activities are indispensable to the trade
of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned
provisions of the RIRR are unreasonable and oppressive for being in restraint of
trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the term
milk company, to wit:

SECTION 5 x x x. (w) Milk Company shall refer to the owner,

manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or by
any other description of such nature, including their representatives who
promote or otherwise advance their commercial interests in marketing
those products;
On the other hand, Section 4 of the Milk Code provides:
(d) Distributor means a person, corporation or any other entity in
the public or private sector engaged in the business (whether
directly or indirectly) of marketing at the wholesale or retail
level a product within the scope of this Code. A primary
distributor is a manufacturer's sales agent, representative,
national distributor or broker.

xxxx

(j) Manufacturer means a corporation or other entity in the

public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together under the term milk
company the entities defined separately under the Milk Code as distributor and
manufacturer.The RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it as a milk company,
whereas in the Milk Code, what is used is the phrase products within the scope of
this Code. Those are the only differences between the definitions given in the
Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for
just one term to encompass both entities. The definition of milk company in the
RIRR and the definitions of distributor and manufacturer provided for under the
Milk Code are practically the same.

The Court is not convinced that the definition of milk company provided in the
RIRR would bring about any change in the treatment or regulation of distributors
and manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and, as
such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46

of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOIDfor being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 206510 September 16, 2014

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

DECISION

VILLARAMA, JR, J.:

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

Factual Background

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

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

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

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, otherwise known as the
3

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

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter
and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose
of routine ship replenishment, maintenance, and crew liberty." On January 6, 2013, the ship left
4

Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan. 1wphi1

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

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement. Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in
5

a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States
will provide appropriate compensation for damage to the reef caused by the ship." By March 30,
6

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

The Petition

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

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

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

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

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

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability schemes for breaches of those duties, and
require Respondents to assume responsibility for prior and future environmental damage in
general, and environmental damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and indigenous communities near or around the
TRNP but away from the damaged site and an additional buffer zone;

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

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

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

Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence administrative, civil, and

criminal proceedings against erring officers and individuals to the full extent of the law, and to
make such proceedings public;

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

d. Require Respondents to pay just and reasonable compensation in the settlement of all
meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no
less severe than those applicable to other States, and damages for personal injury or death,
if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and delivery of objects connected
with the offenses related to the grounding of the Guardian;

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

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or
post salvage plan or plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the Honorable Court;

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

the Local Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the TRNP
Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards full
reparations;

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

grounding of the Guardian in light of Respondents' experience in the Port Royale grounding
in 2009, among other similar grounding incidents;
 k. Require Respondents to regularly publish on a quarterly basis and in the name of
transparency and accountability such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical support
to the TPAMB;

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

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting
the damaged areas of TRNP;

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

p. Allow for continuing discovery measures;

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

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

Since only the Philippine respondents filed their comment to the petition, petitioners also filed a
8

motion for early resolution and motion to proceed ex parte against the US respondents. 9

Respondents' Consolidated Comment

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

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
petition.
Locus standi is "a right of appearance in a court of justice on a given question." Specifically, it is "a
10

party's personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result" of the act being challenged, and "calls for more than just a generalized
grievance." However, the rule on standing is a procedural matter which this Court has relaxed for
11

non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so
requires, such as when the subject matter of the controversy is of transcendental importance, of
overreaching significance to society, or of paramount public interest. 12

In the landmark case of Oposa v. Factoran, Jr., we recognized the "public right" of citizens to "a
13

balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law." We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the
1wphi1

correlative duty to refrain from impairing the environment. 14

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

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

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

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

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-
suability of the State, is expressly provided in Article XVI of the 1987 Constitution which states:
17
Section 3. The State may not be sued without its consent.

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

as follows:

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

Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority
of states, such principles are deemed incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations. Upon its admission to such society,
the state is automatically obligated to comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on which
the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v. Queen
of Portugal, 17 Q. B. 171]

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

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

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

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

from the jurisdiction of local courts, as follows:

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

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it
is, rather, an immunity from the exercise of territorial jurisdiction.
22

In United States of America v. Judge Guinto, one of the consolidated cases therein involved a
23

Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted by
two officers of the US Air Force, and was eventually dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved to dismiss the case on the ground that the
suit was against the US Government which had not given its consent. The RTC denied the motion
but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and
dismissed the complaint. We held that petitioners US military officers were acting in the exercise of
their official functions when they conducted the buy-bust operation against the complainant and
thereafter testified against him at his trial. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued.

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

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

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

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit
will not apply and may not be invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction. (Emphasis supplied.) In this case, the US
26

respondents were sued in their official capacity as commanding officers of the US Navy who had
control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in
the unfortunate grounding of the USS Guardian on the TRNP was committed while they we:re
performing official military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of State immunity therefore bars the exercise
of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

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

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

The international law of the sea is generally defined as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law, regulating the relations of states with
respect to the uses of the oceans." The UNCLOS is a multilateral treaty which was opened for
28

signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984
but came into force on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum). The freedom to use the
29

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

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

In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
33

immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

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

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

or other government ship operated for non-commercial purposes

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

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

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

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

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

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

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

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

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

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

xxxx

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

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

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards
and recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although
the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while
navigating the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea
immediately if they flout the laws and regulations of the Coastal State, and they will be liable for
damages caused by their warships or any other government vessel operated for non-commercial
purposes under Article 31.

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

We are not persuaded.

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

that it is the VF A which governs disputes involving US military ships and crew navigating Philippine
waters in pursuance of the objectives of the agreement.

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

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VF A to US personnel who may be found responsible for the grounding
of the USS Guardian, would be premature and beyond the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from
the violation of environmental laws. The Rules allows the recovery of damages, including the
collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an environmental law.37

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

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

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting
the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;

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

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

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

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

We agree with respondents (Philippine officials) in asserting that this petition has become moot in
the sense that the salvage operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS Guardian from the coral reef. However, we
are mindful of the fact that the US and Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the damage caused by the USS Guardian.
The US Embassy has also declared it is closely coordinating with local scientists and experts in
assessing the extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be
gleaned from the following provisions, mediation and settlement are available for the consideration
of the parties, and which dispute resolution methods are encouraged by the court, to wit:

RULE3

xxxx

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

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

The mediation report must be submitted within ten (10) days from the expiration of the 30-day
period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-
trial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of
court for a preliminary conference for the following purposes:

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

xxxx

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

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

xxxx

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

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS
Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck
for four days. After spending $6.5 million restoring the coral reef, the US government was reported to
have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by the
grounding. 38
To underscore that the US government is prepared to pay appropriate compensation for the damage
caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the
formation of a US interdisciplinary scientific team which will "initiate discussions with the Government
of the Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by
Philippine-based marine scientists." The US team intends to "help assess damage and remediation
options, in coordination with the Tubbataha Management Office, appropriate Philippine government
entities, non-governmental organizations, and scientific experts from Philippine universities." 39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major
relief that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs
which shall include the protection, preservation or rehabilitation of the environment and the payment
of attorney's fees, costs of suit and other litigation expenses. It may also require the violator to
submit a program of rehabilitation or restoration of the environment, the costs of which shall be
borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of
the court.1wphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation
and rehabilitation measures through diplomatic channels. Resolution of these issues impinges on
our relations with another State in the context of common security interests under the VFA. It is
settled that "[t]he conduct of the foreign relations of our government is committed by the Constitution
to the executive and legislative-"the political" --departments of the government, and the propriety of
what may be done in the exercise of this political power is not subject to judicial inquiry or decision."40

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

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, the VFA was duly
41

concurred in by the Philippine Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the United States government. The VF
A being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions. The present petition under the Rules is not the proper remedy to
42

assail the constitutionality of its provisions. WHEREFORE, the petition for the issuance of the
privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.